#265： The Law of Self-Defense
Episode Stats
Summary
On this episode of the Art of Manliness podcast, Brent McKay talks to attorney Andrew Branca about his new book, "The Law of Self-defense: How to Defend Yourself in Civil and Criminal Law." They discuss common legal myths about self-defense, how to defend yourself in civil and criminal cases, and when the law says you can do it.
Transcript
00:00:00.000
Brett McKay here and welcome to another edition of the Art of Manliness podcast. So over the
00:00:18.780
years, we've had experts on the podcast to talk about how to defend yourself, guys like
00:00:22.000
Tim Larkin and Tony Blower. But one thing we never really covered is like, how do you
00:00:26.160
know when your use of force to defend yourself, whether it's lethal or non-lethal, is justified?
00:00:31.860
And what are the legal consequences if your self-defense isn't justified? Well, today on
00:00:35.840
the podcast, I talked to attorney Andrew Branca about his book, The Law of Self-Defense. Andrew
00:00:40.240
and I discuss the common legal myths people have about self-defense, how self-defense differs
00:00:44.240
in civil and criminal cases, and when the law says you can defend yourself and how you can
00:00:47.900
do it. Whether you're dealing with a person threatening your life or whether there's some
00:00:51.240
jerk who's shoving you at the bar saying, let's take this outside. Knowing how to defend yourself
00:00:55.020
isn't enough, you need to understand the legal implications of your actions as well. After
00:00:59.680
the show is over, make sure to check out the show notes at aom.is slash self-defense law
00:01:03.280
where you can find links to resources where you can delve deeper into this topic.
00:01:16.460
Let's talk a bit about your background because it's an interesting one. You're an attorney,
00:01:19.260
but you're also a firearms instructor and a competitive shooter. What sort of firearms competition
00:01:23.160
you did? Pardon? Is it three gun? Well, I was a competitive shooter long before I was an attorney.
00:01:26.980
I started competitive shooting as a kid, actually shooting small bore rifle in school. My high
00:01:32.140
school had a rifle range underneath the cafeteria in the basement of the building, and that's where
00:01:37.480
we used to practice and hold our matches. Yeah, that's how old I am. And then as an adult,
00:01:44.420
I switched from the rifle to mostly handgun shooting, starting with USPSA. And then when IDPA
00:01:51.900
started, I was fortunate to play a very modest refounding of IDPA, which is one of the newer
00:01:58.220
practical pistol sports. My IDPA number is 13. I believe they have over 25,000 members now. So I
00:02:04.800
was there at the very beginning. And that's been where most of my competition has been for the last
00:02:09.160
10 years or so. Fantastic. And so did your interest in firearms lead you to be an attorney? Or is that
00:02:14.260
something like, I got to make a living and I'll find a way to dovetail my interest in firearms into my
00:02:19.760
legal work? You know, we weren't a household that was wildly into guns, but we always had guns in
00:02:26.500
the home like most American households do. And I just found that I really enjoyed it. And if I
00:02:31.740
applied myself, I could be pretty good at it. So it was just a fun activity to engage in. Then of
00:02:37.680
course, once I became an adult, especially once I started a family, it took on a more serious tone.
00:02:42.920
It wasn't just fun anymore, but it was a fundamental responsibility, I thought, to be able to defend
00:02:48.140
myself and my family. And that's largely the reason I switched my focus from the rifle to the handgun.
00:02:55.360
Okay. And in your legal work, is there something you specialize in? Do you specialize in self-defense
00:03:00.720
or is it something, do you do other work in your legal work?
00:03:05.700
Well, when I started this, I had been an attorney for, I think, four or five years. And I would go to,
00:03:12.200
as a competitor, I would go to matches and gun shows and gun stores. And I would overhear people
00:03:17.800
giving each other advice, what to do if they've ever had to act in self-defense. And the advice was
00:03:23.280
absolutely horrific. It was things like, we've all heard, if you shoot someone outside your house,
00:03:28.140
make sure you drag them inside the house before you call the police. I mean, things that would
00:03:31.860
turn a perfectly lawful defensive shoot into something that looks a lot like manslaughter.
00:03:36.280
And I would explain to them why they don't want to do this. And they'd say, okay, we understand.
00:03:40.940
But what's the source that someone like us, a non-attorney can go to, to learn what the law
00:03:46.100
of self-defense actually is, as opposed to what our buddy, the cop told us, or what we heard about
00:03:50.620
on the internet or in a gun magazine. And it turned out there just, there wasn't a good source,
00:03:55.140
even very many good sources for attorneys, much less people who were not attorneys. And that's what led
00:04:00.200
me to write the first edition of our book, The Law of Self-Defense, way back in 1998.
00:04:04.860
And since then, our legal practice has been exclusively use of force law. So we don't do
00:04:12.940
Okay. So yeah, let's talk about the law of self-defense. In America, and there's people
00:04:20.440
who are listening who are not, who don't live in America, but it's a right in America. You can have
00:04:25.760
a firearm to defend yourself. We follow common law, and under common law, it allows to defend yourself.
00:04:34.320
Using physical force or sometimes lethal force if necessary. But with that ability, that right
00:04:40.600
to do that, there comes some responsibility, right? And understanding the law and what allows
00:04:46.600
you to do that. So I'm curious in your, I mean, it sounds like you sort of mentioned already in
00:04:51.160
your, what you said already is that doesn't seem like the legalities of self-defense gets covered
00:05:00.620
very much in depth when people buy a gun or go to, you know, gun training. Has that been your
00:05:06.820
experience or just doesn't get covered that much at all, or just sort of gets glossed over?
00:05:10.640
In general, either it doesn't get covered, or it gets covered superficially, or it gets covered
00:05:16.940
incorrectly. A lot of people think they know a lot about self-defense law, and they may have a lot of
00:05:23.040
knowledge, but unfortunately, often the knowledge they possess is wrong. There are many sources of
00:05:28.440
self-defense law out there, but most of them are bad sources of self-defense law. Your buddy who
00:05:34.380
owns... So what are some of the common... Oh, go ahead.
00:05:36.500
I was just going to say, you know, your friend, the cop who lives down the street,
00:05:40.520
he's gotten some use of force training in the academy, but most of what he knows
00:05:44.740
applies more to police officers than to non-police officers. Most attorneys you'll meet don't know
00:05:50.860
much of anything about self-defense law. They might have had a few minutes, literally minutes,
00:05:54.880
on it. In law school, unless they're a criminal defense attorney, they have no professional need
00:05:59.620
to know anything about self-defense law. And even though they're a criminal defense attorney,
00:06:03.500
most of their defense cases are going to be what I would refer to as bad self-defense cases,
00:06:08.460
bad guys who are simply raising a claim of self-defense to try to escape criminal liability
00:06:13.520
for their unlawful use of force. Attorneys, even criminal defense attorneys, get very, very,
00:06:18.540
very few good self-defense cases over the course of an entire career.
00:06:23.420
And because of that, I mean, what are some of the myths about self-defense law that's out there?
00:06:29.860
Oh, there's all kinds of misinformation. There's misinformation in terms of what kind
00:06:34.880
of force you can use in response to different kinds of threats that you could simply, for example,
00:06:40.360
use a gun if you're merely afraid of some kind of threat that you're facing, regardless of the
00:06:45.740
degree of threat, the circumstances under which you can use, that you have exceptional ability to
00:06:52.520
use different degrees of force under certain circumstances, especially around a person's
00:06:56.560
home. A lot of people get in their head that if a certain set of conditions immediately triggers
00:07:02.300
their right to use deadly force against another person, and usually they're wrong about the
00:07:06.300
circumstances that they have in mind. So there are a bewildering array of ways that people get
00:07:12.480
themselves into trouble on a self-defense claim. Now, the good news is that actually learning the
00:07:17.680
law of self-defense is not that complicated. In all 50 states, there are literally only five
00:07:24.280
conditions that have to be met to use force and self-defense. And if people take the trouble to
00:07:28.920
learn those five conditions that have to be met, it's not hard for them to stay within the rules.
00:07:34.360
The difficulty is when they don't know what the rules are, they tend to make mistakes,
00:07:37.760
not through malice, not because they're bad people, but through ignorance. And they
00:07:41.540
accidentally step outside those five conditions. And a claim of self-defense is very binary.
00:07:47.460
It's like switch that's either on or off. Either you fall within the rules and you have zero criminal
00:07:52.300
liability for your use of defensive force, or you fall outside the rules. And if you fall outside the
00:07:57.440
rules, whatever your use of force was, it was not self-defense. And you're facing very serious
00:08:02.480
criminal charges and perhaps much of the rest of your life in jail.
00:08:05.800
Okay. So yeah, there's these five factors. And as you said, they usually don't follow them out of
00:08:13.980
ignorance. But as you and I both know, ignorance of the law is no defense. You can't say, well,
00:08:18.820
your honor, I didn't know what the conditions were. That's not going to get you out.
00:08:23.720
Absolutely not. And of course, these five conditions that I mentioned, prosecutors know,
00:08:29.740
obviously what those five conditions are. And all five of them have to be present. When a prosecutor
00:08:35.360
is looking at that investigative report from the detectives that has witness statements and
00:08:40.720
forensics evidence and everything having to do with your use of force, what he's looking for is the
00:08:45.620
ability to defeat one of those five elements. If he can prove it's not there, then your claim of
00:08:50.020
self-defense simply disappears. And the jury will never hear the words, self-defense said in your trial.
00:08:56.420
And this is very awkward. If you're making a claim of self-defense, you're implicitly admitting to the
00:09:03.760
underlying use of force. A claim of self-defense is a claim of admission. In other words, you're saying,
00:09:09.420
yes, it was me who used that force, but I had the legal justification of self-defense. Well, if you lose
00:09:15.120
that legal justification of self-defense, all that's left is your concession. In other words, a confession
00:09:21.540
to the underlying crime. And that becomes a very easy conviction for a prosecutor.
00:09:25.980
Okay. So the book is geared towards individuals who are planning to use a firearm for their
00:09:32.800
self-defense, whether in their home or on their person. But as I was reading through this, I was
00:09:37.040
like, you know, this is probably applicable for people who don't plan on using a firearm or a
00:09:41.560
weapon in self-defense. If you just decide to, I'm going to get in a fight or I'm going to punch
00:09:46.660
somebody like this, this stuff will come up, come into play as well. And it can get you into trouble
00:09:52.300
that you might not think about at the time. So let's, let's walk through the laws of self-defense.
00:09:57.240
So first off, let's talk about, I mean, you've been talking about, you know, prosecutors. That's
00:10:02.300
the realm of the criminal trial world, but there are civil implications of using force in a self-defense
00:10:10.640
situation. So let's talk about this. How do the laws of self-defense differ in civil and criminal cases?
00:10:17.000
I mean, how are the burdens different, for example? Sure. Well, generally speaking, the elements of
00:10:21.820
your defense are the same in criminal court and civil court. What changes is the burden of proof and
00:10:28.400
who has to make that burden of proof. So in a criminal case in 49 states, once you've raised a
00:10:35.680
claim of self-defense, it becomes the responsibility of the prosecutor to disprove your claim of self-defense
00:10:41.340
beyond a reasonable doubt. And that's the biggest thing a good self-defense act has going for it,
00:10:47.600
is the tremendous burden on the prosecutor to disprove that claim of self-defense beyond a
00:10:53.140
reasonable doubt. Now I say 49 states, there's one state in which that's not the case. That's the state
00:10:58.200
of Ohio. In Ohio, if you raise a claim of self-defense, you have to prove that claim by a preponderance
00:11:05.160
or a majority of the evidence, as opposed to the prosecutor having to disprove it beyond a reasonable
00:11:10.460
doubt. Very, very different standard of evidence. In a civil case, if someone accuses you, sues you of
00:11:17.180
having caused them some injury deliberately, and you want to argue self-defense, then you also have
00:11:23.060
to be able to prove self-defense by a preponderance of the evidence, much as is required in Ohio in a
00:11:28.820
criminal case. Okay. Oh, and before we go on, I thought we should probably do the obligatory disclaimers.
00:11:35.160
You are an attorney, but we shouldn't, people who are listening, they shouldn't construe this as legal
00:11:39.480
advice. Um, it's information purposes only. Um, I know as my law school days, my ethics class,
00:11:45.880
remember we had to, had a section about this, about legal advice. So obligatory disclaimer right
00:11:50.800
there. So, and with that difference between, um, criminal law and civil law, civil cases, I mean,
00:11:56.920
is there an instance where, you know, you could possibly prove self-defense on a, um, criminal case
00:12:05.860
and, but be found liable in a civil case? Sure. Absolutely. Because in most states to,
00:12:12.640
for your claim of self-defense to be disproven, it has to be disproven beyond a reasonable doubt,
00:12:18.260
meaning not just the majority of the evidence, but a large majority of the evidence has to disprove
00:12:23.120
your claim of self-defense. Let's pretend that means 90% of the evidence, 95% of the evidence.
00:12:28.640
It's not actually a specific number, but it's that order of magnitude that we're talking about
00:12:33.040
for your claim of self-defense to be defeated in a criminal court. In a civil case, on the other
00:12:38.140
hand, to defeat your claim of self-defense, they only have to disprove it by a majority of the
00:12:41.680
evidence, 51% of the evidence, a much easier burden. So it's quite possible that your claim
00:12:47.000
of self-defense will be sustained in a criminal court, not disproven in a criminal court, but easily
00:12:52.000
just in the civil court. And of course, we see this in other contexts all the time. For example,
00:12:55.920
in the, in the well-known OJ Simpson trial, he was accruited in criminal trial. Uh, but then when he
00:13:01.700
was sued civilly, he was easily found liable in civil court. Okay. So yeah, you, just because you
00:13:08.480
get off on a criminal case or, you know, you found, I'm hating saying get off, but, um, you're found,
00:13:14.080
uh, not guilty. Um, and you're able to use self-defense, your, your troubles might not be over.
00:13:19.420
You could still be in court for a civil case and you might have to pay. Absolutely. I mean,
00:13:24.660
the saving grace with most of the civil suit, uh, type of events occurs in states that have some kind
00:13:30.540
of self-defense immunity law, uh, in which if you're found to have acted on lawful self-defense,
00:13:35.240
you're granted immunity from civil suit, uh, in which case you should be sued at all. Uh, but not
00:13:40.100
all states have those and the conditions for qualifying for immunity varies considerably from
00:13:45.480
state to state. Okay. So let's start getting into these elements of, uh, when self-defense is justified,
00:13:52.040
whether using lethal or non-lethal force. Um, so let's start the first one. What's the threshold
00:13:57.940
that must exist in order for you to justify that you were acting in self-defense?
00:14:03.820
Well, for any use of force to be lawful self-defense, it needs to meet five conditions,
00:14:08.700
or I should say up to five conditions, uh, what we call attorneys would call five elements. Uh,
00:14:14.000
and those are innocence, eminence, proportionality, avoidance, and reasonableness. And innocence
00:14:18.760
basically means you must not have been the aggressor in the fight. An aggressor cannot claim self-defense.
00:14:23.840
Sounds obvious enough. Uh, eminence meaning that you were defending yourself against a threat that's
00:14:29.480
about to happen to you right now. So not someone who says, well, I'm going to go home and get a gun
00:14:33.960
and come back and shoot you. That's a future threat. That's not an eminent threat. So you can
00:14:37.960
only defend yourself against an eminent threat. Proportionality means that you can only use as
00:14:42.460
much force as necessary to stop whatever the threat is. So against the non-force threat, someone's
00:14:47.940
just going to shove you. For example, you can use only non-deadly force in self-defense against a
00:14:52.760
deadly force threat. Someone has a knife. You can use deadly force to defend yourself. Um,
00:14:57.640
avoidance has to do with whether or not you have an obligation to try to retreat from the fight,
00:15:01.660
uh, before you can use force in self-defense. Uh, and this is the area that has the biggest
00:15:06.480
variance among the 50 states. Uh, some states impose a legal duty to retreat before you can act in
00:15:12.080
self-defense. Other states, the large majority of states are stand your ground states where you don't
00:15:17.040
have such a legal duty. And the last element is reasonableness. Everything you see, all the
00:15:22.240
decisions you make, everything you do has to have been that of a reasonable and prudent person. If
00:15:27.880
you act unreasonably, then you fail on that particular element. And as I say, these elements
00:15:32.760
are cumulative. They all have to be present. And if any one of them is missing, your claim of
00:15:37.680
self-defense disappears entirely. So that of course is the prosecutor's job to try to destroy one or more
00:15:43.960
of those elements. And your claim is self-defense. The job of your defense attorney is to make sure
00:15:48.420
that they're all present. Okay. So let's talk about some of these elements. Uh, like for example,
00:15:52.160
innocence. Uh, yeah, it's obvious that if you know, if you want to claim self-defense, you ha you can't
00:15:56.240
be the aggressor, the one who initiated the fight. Um, but there's moments in a fight where you might
00:16:04.240
not have been the original aggressor, but you turn into the aggressor and you're no, you can no longer
00:16:08.680
claim self-defense. So can you walk us through some hypotheticals where that you might've been
00:16:12.600
acting in self-defense at first, but as things went on, you're no longer acting in self-defense.
00:16:17.460
Yeah. So people tend to lose on the element of innocence to get in trouble on the element of
00:16:22.020
innocence in one of two ways. Uh, one way, unfortunately is they were in fact the aggressor.
00:16:27.720
Uh, we all think we're the good guys. We would never be the aggressor in a fight,
00:16:31.060
but we all have bad days. And every once in a while, someone acts irrationally and they become
00:16:36.240
the aggressor in a fight, in which case they would not normally qualify for self-defense. Now,
00:16:40.780
having said that there are ways to recover from that kind of mistake, gain your innocence. And
00:16:45.740
I'll touch back on that in a moment. More commonly, how good guys get in trouble on the element of
00:16:50.360
innocence is not that they're actually the aggressor, but they conduct themselves in a way
00:16:54.580
that looks like they were the aggressor or can be made to look as if they were the aggressor.
00:16:59.800
Uh, to give you an example, we had a case in our office where one of our clients was challenged to
00:17:04.740
a fight. They weren't, he was in a bar. These things happen in bars a lot for some reason.
00:17:08.320
Uh, he was challenged to a fight. The other guy went outside taking off his coat. Uh, and our
00:17:13.780
client said, well, this is crazy. I'm not going to fight this guy. I'm not going to stay here. I'm
00:17:16.920
going to go home. And our client walked out the door to go home and the person attacked him and a
00:17:21.820
fight ensued. The police showed up and our client wanted to claim self-defense, but the prosecutor
00:17:26.240
said, well, no, your client was challenged to a fight. And he went out to a fight. If he consented to
00:17:31.160
the fight, then he was a co-aggressor. It wasn't an act of self-defense.
00:17:34.560
The prosecutor was able to do that because what did our client's conduct look like to
00:17:39.920
witnesses in the bar? Our client got challenged to a fight. Our client went outside and got into
00:17:44.580
a fight. It looked like he wanted that to happen. Uh, what our client should have done is gone out
00:17:49.980
a different door, had the bartender call the police, call the police himself, has a cell phone these
00:17:54.820
days, of course. Um, unfortunately, when you act in a way that can be interpreted as if you were the
00:18:00.160
aggressor, you open the door for the prosecutor to argue that you were the aggressor and therefore
00:18:04.500
don't qualify for self-defense. So we always have to be cognizant, not just of what we're
00:18:09.560
actually doing or intending to doing, but how our conduct can be perceived by people who are going
00:18:14.860
to be giving statements to the police, because that's what the prosecutor has made his decision
00:18:18.380
on. Now, in terms of whether or not you were made to look like an aggressor or actually lost your
00:18:22.840
mind and were the aggressor in a particular event, uh, there are ways to regain your innocence.
00:18:28.260
And one way to bring your innocence is to withdraw from the fight, communicate your withdrawal to
00:18:33.220
the other person. So say you bought that brand new sports car you've always wanted. You're driving
00:18:37.920
it the first day and some idiot bangs a shopping cart off in the parking lot and you're enraged and
00:18:42.940
you get out and you shove them. Well, you're the aggressor in that fight. You've started a non-deadly
00:18:48.100
force fight, but if you immediately come to your senses and say, oh my God, what am I doing? Sorry,
00:18:52.220
I don't want to get into a fight. You back off from the fight and he pursues you and re-engages you.
00:18:57.080
What's happened then is you've regained your innocence by withdrawing and now he's the aggressor
00:19:01.360
in a second fight. So that's a way for people who, even if they've acted as the aggressor,
00:19:06.380
it could be made to look as the aggressor can regain their innocence and regain their ability
00:19:10.120
to claim self-defense. Gotcha. And in another situation, so like, I guess you, the example
00:19:14.680
of the bar fight, that's mutual combat, right? That's when you decide, let's take this outside guys.
00:19:19.340
Exactly right. So let's go outside and settle this like men. Uh, those are co-aggressors.
00:19:24.520
Neither one of them can lawfully claim self-defense for their use of force.
00:19:28.740
Right. That is incredibly stupid. It's stupid on many levels, of course,
00:19:32.900
not just the legal level, but the survival level. We all have to keep in mind that just because we're
00:19:37.640
the good doesn't mean we're going to win the fight. Uh, we're all a 50 cent box cutter from sitting on
00:19:43.380
the curb with our hand against our neck and bleeding out because the other guy got in a good shot on us.
00:19:48.340
The fact that we may have been acting lawfully doesn't help you in that circumstance. So
00:19:52.820
I urge all my clients for obvious reasons, not just the legal, but also the survival reasons. You do
00:19:58.280
not want to get into a fight. You absolutely have to, because not only could you end up in legal
00:20:02.740
jeopardy, you could die. Right. Right. And then another instance of where, um, you might start off
00:20:08.900
in self-defense is you're defending yourself, but then the original aggressor decides to flee,
00:20:14.540
but you keep pursuing. And I guess in that instance, you would be right. It's a good point.
00:20:19.780
So I talked about the ability to regain your right to self-defense by withdrawing from the fight. Well,
00:20:25.640
it's not just you who can regain your right to self-defense. That other guy can regain his right
00:20:29.960
to self-defense. So if you're attacked by somebody and you're defending yourself and suddenly he stops
00:20:34.940
fighting, doesn't want to fight anymore, uh, he's regained his innocence. And if you pursue him,
00:20:40.080
you decide you're going to give him some of his medicine. Well, you've just become the aggressor in a
00:20:44.280
second fight. And guess what? Now he can claim self for his use of force against you in that second
00:20:49.520
fight. And you can't. So for Pete's sake, if you're able to separate yourself from a fight, don't do
00:20:54.760
anything that even looks like you're trying to re-engage. Okay. So let's talk about the, uh, the,
00:21:00.880
the proportionality, right? Um, if someone is attacking you with a non-lethal force, you have to use
00:21:08.700
a non-lethal force. Um, someone's using lethal force, you can use lethal force. So what constitutes
00:21:15.440
lethal force? I mean, I obviously a firearm, a knife, but any other situations where lethal force
00:21:21.060
would be like, okay, you could actually use lethal force to defend yourself.
00:21:24.260
Sure. Proportionality is one of the places that is, uh, where people most commonly get into trouble.
00:21:29.360
Good people most commonly get into trouble. Um, when we're talking about proportionality,
00:21:33.260
we're talking about that degree, that intensity of force that's involved in the fight. And as you say,
00:21:38.280
there tend to be two buckets, either non-deadly force or deadly force. And deadly force is any
00:21:43.860
force that can cause death or grave bodily injury. Uh, so for example, a sustained beating, uh, could
00:21:51.280
well qualify as grave bodily injury, meaning you could use deadly force to defend yourself against
00:21:56.900
that. And if the beating wasn't likely to cause death, if it was likely to cause grave bodily injury,
00:22:01.520
that's sufficient to be what the law calls a deadly force threat that you can use deadly force
00:22:06.480
against in self-defense. Uh, obviously a force that can cause death qualifies as a deadly force
00:22:12.340
threat, like a gun or a knife where people tend to get into trouble, uh, is not so much when they're
00:22:17.200
facing a deadly force threat because then they can really use any degree of force to defend themselves.
00:22:21.520
It's when they're facing a deadly force threat and they use a deadly force in self-defense. And
00:22:26.700
unfortunately this happens more and more these days because pretty much every state now has some
00:22:32.340
kind of provision for concealed carry of a firearm. So we have a lot of people who get their concealed
00:22:37.080
carrier permit. They have a gun on their person. Uh, they perceive a threat, they get scared.
00:22:42.560
And unfortunately the only tool of self-defense that they've bothered to carry on their person
00:22:47.920
is that gun. That's it. And they facing a threat that scares them, but in fact is not a deadly force
00:22:55.880
threat. And if you're facing a non-deadly force threat, you're not allowed to use deadly force
00:22:59.640
in self-defense, but because their only tool is a gun, a deadly force means a self-defense. They end
00:23:04.700
up going to the gun and they pull a gun against a non-deadly threat. And if you do that, your use of
00:23:10.180
force was not proportional and you simply don't qualify for self-defense. So one of the things we urge
00:23:15.560
our clients to do, and I do personally, I should mention, I have a carry permit. I've carried a gun
00:23:21.040
every day of my adult life. We're lawfully permitted, of course. Uh, and when I carry a gun, I also carry
00:23:27.380
a non-deadly means of self-defense. Typically for me, it's pepper spray. Uh, but it's very important
00:23:33.260
to be prepared for that non-deadly force attack with a tool other than your gun. In fact, if you look
00:23:38.920
at the FBI statistics, they'll tell you you're five times more likely to be the victim of a non-deadly
00:23:45.000
force attack against which you can't use your gun than against a deadly force attack against which
00:23:50.180
you could use your gun. So if all you have is the gun, you're preparing for actually the less common
00:23:56.240
form of attack you're likely to face. So it's very important if you're going to have a gun or not have
00:24:01.840
a gun, it's very important to make sure you also have some means of non-deadly form of self-defense
00:24:06.260
so that your deadly force, I'm sorry, so that your force and self-defense is proportional to whatever
00:24:11.400
the threat is that you're facing. Right. It reminds me of that phrase, you know,
00:24:15.020
if the only thing you have is a hammer, then everything looks like a nail.
00:24:18.200
And unfortunately, when people don't think this through, they end up facing some non-deadly
00:24:21.700
force threat. They go to the gun and then they're shocked to decide that they're being charged with
00:24:25.560
aggravated assault and that they can't justify that use of the gun as lawful self-defense because
00:24:30.900
it was disproportional to the attack. And then they're facing 10 or 15 years in prison and they
00:24:35.520
legitimately, genuinely, in faith, believe they were acting in lawful self-defense.
00:24:39.380
But because of their ignorance, because they didn't understand the simple rule of having
00:24:43.360
to stay proportional, they put themselves in tremendous legal jeopardy.
00:24:48.040
Okay. And I guess also that would mean that, you know, besides carrying like a non, like a pepper
00:24:53.140
spray, but also, you know, staying physically fit, getting martial art training might also be another
00:24:59.920
way you can train to ensure that you, you know, you stay proportional and when you do have to defend
00:25:08.580
Absolutely. So people who are into martial arts, who train diligently, their bare hands and feet
00:25:14.440
might be more than sufficient non-deadly force tools in self-defense. I do have to caution something
00:25:19.360
about martial arts, however, and that is that we run into this quite a bit. Martial artists believe
00:25:23.980
that as long as they're not using a weapon, then that means as a matter of law, they're not using
00:25:31.040
deadly force. It's really important to keep in mind how the law defines deadly force. It's not just force
00:25:37.360
that can cause death. It's force that can cause death or grave bodily harm. And there are a lot
00:25:42.680
of martial arts techniques that don't cause death, but do cause grave bodily harm. There are joint
00:25:48.320
locks, for example, that can destroy an elbow or destroy your wrist very easily. That would clearly
00:25:53.840
constitute grave bodily harm. And you're not lawfully entitled to use those kinds of martial arts
00:25:58.780
techniques unless you were facing a deadly force threat. So it's very important for martial artists
00:26:04.480
to keep in mind, especially when they have these higher skill sets and they're capable of causing
00:26:08.180
genuinely serious injury, that just because they're not using a weapon doesn't mean that they're not
00:26:13.940
using what the law would call deadly force. Okay. Good caveat there. So let's talk about this. I think
00:26:19.480
this goes to the reasonableness element. Let's say you are mistaken about the deadliness of the force
00:26:28.400
being used against you. For example, let's say you think the guy has a gun, so you shoot him or stab
00:26:34.340
him with your knife, whatever, but he ends up, it doesn't have a gun. What does the law say about
00:26:39.660
using mistaken lethal force in a situation? Yeah, this happens quite a bit, actually. In fact,
00:26:48.660
it happens several times a year just with law enforcement officers where they shoot somebody
00:26:52.920
and it turns out that the bad gun was a toy of some kind or an airsoft pistol. Now, the law of
00:27:00.620
self-defense entitles you to defend yourself against the appearance of a threat, the reasonableness of a
00:27:07.560
threat. You're not expected to make perfect decisions in self-defense. You're expected to make
00:27:12.580
reasonable decisions in self-defense. So if someone displays an object that to a reasonable person
00:27:18.160
looks like a real gun, you're entitled to treat it as if it were a real gun. You're not supposed to
00:27:23.140
take the time to figure out whether or not it could theoretically be a toy. You don't have the time
00:27:28.320
for that, and the law recognizes that. There's a phrase from an old Supreme Court case from 1921 that
00:27:33.560
says, a detached reflection cannot be expected in the presence of an uplifted knife. The law recognizes
00:27:39.820
that under the stress of an attack, you have to make quick decisions. Those decisions don't need to
00:27:44.200
be perfect. They just need to be reasonable. So if you've made a mistake, you thought you were
00:27:48.460
facing a real gun. It turns out to be a toy gun. Literally, you've made a mistake, right? That was a
00:27:53.180
mistake in observation. It doesn't matter if you made a mistake as long as the mistake was a reasonable
00:27:58.720
mistake. Okay. And that's the true both in criminal and civil?
00:28:02.620
Absolutely. Okay. So let's talk about this eminence threshold because I think that can also get people
00:28:12.140
in trouble where in order for you to justify self-defense using either lethal or non-lethal
00:28:17.720
force, the threat has to be eminent. So what does eminent mean? Is it actions or can words or I mean,
00:28:27.240
what's involved in that? Sure. So eminent means the threat's about to happen right now. In the next
00:28:32.560
few moments, you'll suffer the injury unless you don't immediately respond in self-defense.
00:28:38.180
Where people sometimes trouble is someone threatens them with some future harm and they decide, well,
00:28:42.840
I may as well settle this business right now. And they become the aggressor in a fight against which
00:28:47.480
the other threat was not yet eminent. So someone says, I'm going to go get my friends and come back
00:28:51.740
here and beat you up, or I'm going to go get a weapon and come back and beat you up. The law expects
00:28:55.600
you to do something other than immediately use force against that person. You can leave the area,
00:29:00.140
you can call the police, but they don't want you to fight over a future threat. Now there are a number
00:29:08.080
of frameworks that can be used to evaluate whether or not a threat is eminent. The most common one is
00:29:14.460
something called AOJ, ability, opportunity, and jeopardy. And essentially what that means is does
00:29:18.900
the other person have the physical ability to cause you harm? For example, a small child would not
00:29:23.860
typically have the ability to cause a grown man harm. Do they have the opportunity to bring that to bear
00:29:28.180
so they're close enough to strike you with their fist or bat, for example? And are they acting in a
00:29:33.500
way that a reasonable person would perceive that they are about net ability and opportunity to bear
00:29:38.840
against you? When someone has ability, opportunity, and jeopardy, then they constitute an imminent
00:29:44.880
attack. And a good way to illustrate that you need all these elements is just to imagine you see a
00:29:49.640
uniformed police officer in a street corner. He's got a pistol on him, of course. He has ability
00:29:54.520
because he has the gun. He has opportunity because he's close enough, if he wanted to, to shoot you
00:29:58.660
with that gun. But there's no jeopardy. There's nothing to indicate a reasonable person that he's
00:30:02.440
about to use that gun against an innocent person. So without all three of those elements, you don't
00:30:07.540
have an imminent threat. Where people tend to get into trouble is where they're facing a threat that
00:30:12.800
appears genuine, but it's not yet an imminent threat. So for example, you see someone who's an
00:30:17.780
aggressor. He's screaming. He's mad at you for some reason. He's got a bat. He's going to strike you with
00:30:23.560
that bat. I'm going to break your head with this bat, but he's 100 yards away. He can't yet reach
00:30:29.200
you with the bat. So he doesn't have the opportunity to bring that bat to bear. There's ability. He's
00:30:33.520
got the bat. There's jeopardy. He's threatening to kill you, but there's not yet opportunity. Until he
00:30:38.180
gets close enough to bring that bat to bear, he's not yet an imminent threat. And the law requires that
00:30:44.160
you wait until he's an imminent threat before you can use force and self-defense. Now, you don't wait
00:30:48.160
until he can actually strike you, but you have to wait until he, unless you act, he will be able to
00:30:53.240
strike you in the immediate future. And are there any instances where words can be enough or does
00:31:00.280
that have to be words plus actions? So words come up in the context of that jeopardy element. Are
00:31:05.860
they acting in a way that would lead a reasonable person to believe that they are about to attack
00:31:10.360
right now? The law does not like to allow words alone to constitute jeopardy. So if they're literally
00:31:18.500
doing nothing but speaking to you, no action at all, that's never sufficient to constitute jeopardy.
00:31:25.800
So I'm going to beat you. I'm going to shoot you. As long as there's no physical action consistent
00:31:31.640
with that, the words alone are not enough. The law requires some kind of overt act. What the words can do
00:31:37.640
is provide almost all the jeopardy that's required. So the amount of physical action you need to see can be
00:31:44.000
very slight. Someone says, I'm going to shoot you. And then they make a small motion with their hand
00:31:48.860
as if reaching for a gun. That small motion with those words can be enough to justify an imminent
00:31:55.520
threat. The small action by itself would mean nothing absent the words. But what the words have done is
00:32:01.200
reduce the amount of physical action you need into a very, very small amount. The police would call this
00:32:06.860
a furtive movement. The suspect made a furtive movement as if for a weapon. In combination with the
00:32:12.440
words and other factors, then that becomes sufficient for justification. But if all they're
00:32:16.640
doing is speaking, they're not approaching, they're not in proximity, they don't look like they're
00:32:19.880
reaching for a weapon, they're not pulling back a fist. If there's no physical action, there's only
00:32:24.240
words. The words alone are never enough. Okay. So the common law allows individuals to use force
00:32:31.560
to defend themselves. What does the law say about using force to defend others, third parties?
00:32:38.160
Strictly speaking, the law treats defense of others much the same as it treats defense of
00:32:43.720
yourself. In fact, in most states, if you look at the statutes, they simply add a third person pronoun
00:32:48.420
to the self-defense statute. So they'll say, you can force in defense of yourself or another person if,
00:32:54.320
and then they'll list those five elements we've already talked about. Unfortunately, the reality is
00:32:59.500
that coming to the defense of another person tends to be much more complicated from a practical
00:33:04.560
perspective than acting in your own defense, largely because when you're coming to the defense
00:33:09.840
of another person, you often don't know what's really happening. This is particularly true when
00:33:15.900
we're talking about defense of strangers and much less true if we're talking in defense of a family
00:33:20.020
member or a friend or a coworker or somebody we have some familiarity with. Where people tend to get
00:33:25.220
into trouble is when they come to the defense of strangers. Now imagine, for example, that you turn a
00:33:30.200
corner and you see two people fighting, and one of them is clearly losing the fight, looks like the
00:33:35.240
victim of an attack, and you come to that person's defense. Well, unless you saw the start of the
00:33:40.020
fight, you just turned a corner and the fight was already in progress, you actually don't know who began
00:33:46.400
that conflict. You don't know who the aggressor was, and therefore you don't know who would have been
00:33:51.540
entitled to use force in their own defense. And under many circumstances, if someone you rescue would not have
00:33:57.100
been entitled to use force in their own defense, you're not entitled to use force in their defense
00:34:01.480
on their behalf. Because if they weren't the innocent party in the fight, they have no right
00:34:05.460
to self-defense. Therefore, you have no right to use force on their behalf. Because obviously,
00:34:09.720
it's the other person then who is the innocent party in that conflict. So that's one reason people
00:34:15.360
get in trouble is because they come to the rescue of someone when they don't really know what the
00:34:19.420
circumstances are. The other way they get in trouble is they accurately perceive what's happening,
00:34:24.880
and they do in fact come to the view of the innocent person. But then that innocent person
00:34:29.160
doesn't recount the events as they actually happen to the police. And this often happens in domestic
00:34:34.880
violence type of events. So a woman being attacked by some man, you come to her rescue. It turns out
00:34:41.700
they're a couple. He was committing an act of domestic violence on her. But when she realizes that her
00:34:48.220
husband's going to go to jail for a long time, if she tells the police the truth about what happened,
00:34:51.920
her story begins to change. Because she doesn't want him going to jail. And it becomes easier for
00:34:56.760
her to say, it wasn't her husband who started the problem. It was you who started the problem.
00:35:01.580
Now, if the person you rescued is telling the police that it was you who was the aggressor in the fight,
00:35:07.420
what are they supposed to believe? They may very well believe it was you the fight. In which case,
00:35:13.160
you look like the aggressor. And if you look like the aggressor, then you lose on the element of
00:35:16.980
innocence. If you lose on the element of innocence, you don't have a claim of either self-defense or
00:35:21.480
defense of others. So we urge people to have great caution when coming to the defense of other
00:35:26.920
people. It's always possible to be a good witness. Everybody has a cell phone. You can call 911. You
00:35:32.240
can video the intervention. It's not that we're telling people to never intervene. Sometimes you'll
00:35:37.940
see a situation in which you feel a moral compulsion that you have to intervene. It's just the right thing
00:35:42.860
to do. But we want people to understand when they make that decision that to be able to make an
00:35:47.340
informed decision about what the risks are that you're taking, both from a physical and from a
00:35:52.780
So I guess, so from a, if you're trying to, if you're in the defense of third parties, there's no
00:36:01.100
Sometimes. So the way the law is supposed to work is if you perceived an event and you reasonably
00:36:06.980
perceived it and the way your perception was incorrect, you might still be okay. A classic example
00:36:12.640
is you turn a corner and you see a woman being grabbed by a couple of guys and she's screaming,
00:36:17.340
she's being kidnapped and you come to her rescue, you save her. You take your gun out, you point your
00:36:22.700
gun at them. Kidnapping qualifies as a deadly force attack because of inevitably kidnapped victims
00:36:28.940
are subject to death or grave bodily harm. So your gun, you come to, you come to her defense to prevent
00:36:34.440
her kidnapping. And then it turns out she wasn't being kidnapped. She was being subject to lawful
00:36:39.500
arrest by two undercover drug detectives. Now under the law, if there's, there's, there's basically
00:36:49.740
two legal paradigms that can be applied to that scenario. One of them is a reasonable perception
00:36:53.880
paradigm, which is reasonable mistake paradigm. We talked about with the toy gun. You were mistaken
00:36:59.020
about your perception. You thought it was a kidnapping, but you had good reason to believe that because
00:37:03.740
she was shouting that. And it looks like a kidnapping is you made a mistake. It was in fact a lawful
00:37:08.400
arrest. But as long as your mistake was a reasonable mistake, then your use of force on her behalf may
00:37:13.140
still be okay. Unfortunately, there are other states that apply a different paradigm, alter ego
00:37:18.420
paradigm. And under the alter ego paradigm, you assume that person's ego. That's why they call it
00:37:24.840
alter ego. In other words, your right to use force in her defense is no greater right would have been
00:37:30.180
to use force in her own defense. There is no room for reasonable mistakes under this model.
00:37:35.280
Now, in this case, I just described where the woman claimed kidnapping, but actually being subject to
00:37:40.800
a lawful arrest, her right to use force to resist a lawful arrest is zero. Therefore, under an alter
00:37:46.920
ego paradigm, your right to use force on her defense, no matter what she was saying, no matter what it
00:37:51.220
looked like is also zero. And now what you've done is you've just committed aggravated assault against
00:37:56.100
two police officers. And that's not going away. Now, not every state applies alter ego and not every
00:38:02.300
state applies alter ego in every circumstance. But unless you've memorized all 50 states and all
00:38:08.380
the circumstances in which they might apply this, the only prudent assumption to make is that you
00:38:12.720
might be subject to alter ego, in which case you need to be very, very cautious before using force in
00:38:18.620
defense of another person. Okay. So you mentioned this earlier, some of the myths around use of force
00:38:28.100
when defending yourself. And it's in relation to your property, like how much force you, like
00:38:32.600
the threshold that, you know, sometimes people say, well, the threshold lowers when you're in your
00:38:38.020
home or in your car. Is that the case? I mean, what, how do things, how does the law change whether
00:38:44.040
you're in your home or in your car? Does anything change or does it pretty much stay the same?
00:38:48.900
Typically in most states, it changes in the sense that the law gives you extra dispensation to use
00:38:57.540
force in the context of highly defensible properties. And the highly defensible is always
00:39:02.780
at least your home. In some states, it's also your place of business. In some states, it's also your
00:39:07.560
motor vehicle. And normally how they do this is they provide for a legal presumption of reasonable
00:39:13.800
fee. Certain conditions are met. The most common condition is if you're dealing with someone who's
00:39:18.920
a genuine intruder, who's forcibly entered your home, there's very little you can do that is going
00:39:25.160
to get you into legal trouble in dealing with that particular threat. Meaning a genuine intruder who's
00:39:30.460
forcibly entered your home at night. There, the law gives you the broadest dispensation to use force.
00:39:36.340
And now that doesn't mean to imply that you absolutely should use force. And in that circumstance,
00:39:40.280
you have to make the call yourself. But the law will give you the broadest discretion on the use
00:39:46.220
of force in that circumstance. Where people tend to get into trouble is either they're dealing with
00:39:50.900
someone who's not a genuine intruder in the home, or they're dealing with a situation in which they
00:39:58.220
don't qualify for being in their home. For example, what qualifies as your home? In every state,
00:40:04.800
being inside, literally inside the four walls of your home qualifies as being in your home. But what
00:40:09.640
about being on your front porch, or your back porch, or your front yard, or your backyard? Whether or
00:40:14.080
not you're going to get that legal presumption that you were in reasonable fear varies from state to
00:40:18.280
state, depending on how broadly they define the scope of your home. The other way people get in
00:40:23.240
trouble is they're not dealing with a genuine intruder. The person they use force against is
00:40:27.720
someone else who lives in the home. So someone they share an apartment with, or a spouse, for example,
00:40:32.760
or a sibling, or someone they've invited as a guest, either someone who's come to a party,
00:40:38.360
or a maintenance guy they've invited into their home. Often the law will say, well, that person's
00:40:44.500
not actually an intruder. They were invited there. They're lawfully, and therefore, you don't have
00:40:48.560
this extra dispensation to use force. Now, the good thing about someone who's merely a guest is it's
00:40:54.380
very easy to turn a guest into a trespasser, someone who's not lawfully present. You simply tell
00:40:59.460
them to get out. And if they refuse to get out, then they've become a trespasser, and you've
00:41:03.460
regained that extra privilege to use force in self-defense. Okay. And what about use of force
00:41:09.120
in defensive property? Like, say, if someone's trying to steal your car, or you see someone in
00:41:15.020
your, you walk into your garage, you see someone stealing stuff from your garage. What does the law
00:41:19.940
say about using force in those situations? Right. So it's a great question. We really need to
00:41:25.280
distinguish between what we just described, what we just talked about, which is highly
00:41:29.360
defensible forms of property and regular personal. Highly defensible forms of property are typically
00:41:36.020
your home, sometimes your place of business, sometimes your occupied vehicle, a vehicle
00:41:40.560
in which you're present. Outside of that scope, everything else is really personal property.
00:41:46.760
So any item you could pick up and carry around. So for example, you're at a Starbucks and you
00:41:51.520
have your laptop case next to you with your computer in it. Some dude picks it up and tries to run
00:41:56.140
off with it. Take in your personal property. It's got nothing to do with your home, your
00:42:00.660
business, or one of those highly defensible places. In pretty much every state, with one
00:42:06.280
notable exception, you're only allowed to use non-deadly force in defense of personal property,
00:42:13.500
simple tangible property. Even then, there can be further restrictions. Often you'll have to do that
00:42:19.680
if you're in while it's happening or if you're in hot pursuit of the person. In other words,
00:42:23.880
if someone surreptitiously takes your laptop bag and you see them the next day walking down the
00:42:28.580
street with it and it's monogrammed, there's no question that it's yours, you're not allowed to
00:42:32.800
use any degree of force to recover that bag because it's not actually currently happening. You're
00:42:36.960
expected to call the police and let them deal with the situation. People tend to get into trouble
00:42:41.620
with this because they use too much force. They might, for example, go to a gun to protect a piece
00:42:45.560
of personal property. Give my laptop case back. Well, you're not allowed to use deadly force in
00:42:50.200
defense of personal property. So what you just did was commit an aggravated assault with a firearm.
00:42:54.340
You weren't acting within the bounds of the law. Or one of the most common myths in America is that
00:42:58.940
you can threaten someone with deadly force if they're simply trespassing on open land.
00:43:03.940
Open land is not treated as highly the form of property. It's not a home. It's not a place of
00:43:08.320
business. It's not the type of property that provides shelter or protection to people.
00:43:12.180
It's just open land. You can use non-deadly force to remove a simple trespasser from open land,
00:43:19.280
but you can't use deadly force. Now, I mentioned there was one state that has an exception to this.
00:43:24.280
Texas actually has a statute, Penal Code 9.42, that does allow for the deadly force in defense
00:43:31.220
of property. It's the only state that has this kind of provision. But there are a lot of hoops that have
00:43:37.340
to be jumped through in order to qualify. And I would urge people, even if you live in Texas,
00:43:41.680
please don't. Because if you fail to jump through any of the hoops, and it can be complicated to do
00:43:46.800
that kind of analysis while you're in the stress of the moment, if you fail to jump through any of
00:43:50.940
the hoops, you don't qualify for the protection of the suit. And then your use of force was not
00:43:54.900
lawful and you're facing serious legal jeopardy. Okay. So it's personal property. At most, maybe grab
00:44:02.780
the guy. That's it, you know, to get your thing back. But that's about all you want to do. And
00:44:08.080
then go to the police. Or you might be able to use other forms of non-deadly force. So for example,
00:44:13.100
someone stealing your laptop, you might be justified in using pepper spray to come stealing
00:44:17.420
your laptop. That's a non-deadly force of, that's a non-deadly form of force. So you're properly
00:44:24.120
limiting yourself to non-deadly force in defense of that property. What you don't want to do is be in a
00:44:28.500
position where the only tool you have is a gun and you end up going to the gun under circumstances
00:44:32.800
in which it's not justified. Now I can tell you my personal feeling is that I would not be blind to
00:44:40.180
use any degree of force to protect personal property. I mean, I live and die by my laptop.
00:44:44.580
My laptop is basically my office, but I'm very careful to keep it backed up. And I don't think
00:44:50.180
I would want to get a physical, potentially life-threatening fight to protect a piece of
00:44:54.660
property that I could easily replace by going to the Apple store, getting another one, and just
00:45:04.160
Right, right. One of the things I stress to people, Brett, that anytime they're contemplating
00:45:09.780
using force against another person, they have to keep in mind on the physical level, there's no
00:45:14.800
way to reduce the risk to you of a fight to zero. There's always the possibility you could end up
00:45:20.940
seriously injured or dead from a physical fight. And in the legal context, there's no way to reduce
00:45:26.780
the legal risk to zero, even if you do everything right. Because keep in mind, nobody who's going
00:45:32.920
to be judging your conduct, the police, the prosecutor, the judge, the jury, those people
00:45:37.820
were there when you acted in self-defense or in defense of a piece of property. They don't know
00:45:42.080
what really happened. All they know is what the evidence suggests happened. And the evidence might
00:45:46.880
suggest that you did within the bounds of lawful self-defense. They could conclude that mistakenly,
00:45:52.380
but that doesn't matter. If they conclude that you fall outside the rules of the bounds
00:45:56.440
of self-defense, sometimes innocent people get convicted. That's just the way it is.
00:46:00.580
There are mistakes that can happen in the system. So there's no way to reduce the legal risk
00:46:04.360
to zero. And what that means as a practical matter is anytime you get into a physical conflict
00:46:09.700
with somebody, there's a possibility you could be seriously injured or dead. Possibility you
00:46:13.620
can go to jail. You can get convicted and go to jail for a long time. And what I always try to
00:46:18.400
encourage people to think about is what would you be prepared to go to jail for and still have been
00:46:25.520
worth it? So you point a gun at someone who committed an aggravated assault, you could be
00:46:30.520
sentenced to say 10 or 15 years in jail, some states 20 years in jail. Under what circumstances
00:46:35.520
on the last day of that 20th year would you be able to look back and say, you know what,
00:46:39.440
if I had to do it again, I would still do it because it would have been worth it, even knowing I was
00:46:44.140
going to spend 20 years in jail. And if you think about it in that context, it should be a very,
00:46:48.280
very short list of circumstances in which you could say to yourself, it was still worth spending
00:46:53.880
20 years in jail to save your life. So you're not dead. I'd rather be dead in prison than alive
00:46:59.200
outside. I'm sorry. I'd rather be alive in prison than dead outside of prison to save the life of
00:47:04.300
your family. Absolutely. But over a piece of property, are you prepared to spend years of your
00:47:10.960
life in jail over a piece of property? Because that's the risk you're taking when you act in the
00:47:15.340
fence of property, much less someone else's property, much less someone else's security.
00:47:20.880
And when you come to the stranger, you're taking a risk that you could end up spending much of the
00:47:25.020
rest of your life in jail. And frankly, for most of those circumstances, I tend to think to myself,
00:47:31.280
you know, when I became an adult, I got a concealed carry permit. I got a gun. I learned how to use it.
00:47:36.100
I learned what the rules are. I made sure I was proficient. That other person could have done that,
00:47:41.360
but they didn't. And why is their failure to meet that fundamental responsibility suddenly my problem?
00:47:49.040
I'd be most inclined to be a good witness. So people always have to keep in mind that anytime
00:47:53.380
you're thinking about getting engaged in the works against another person, it could cause you serious
00:47:58.180
injury, a lot of time in jail, a lot of money. And you better have been able to tell yourself after
00:48:04.500
the fact that it was worth having done that, or it'll be a pretty sorry state of affairs.
00:48:09.000
Right. I think it's interesting because we've had several, you know, self-defense experts on the
00:48:13.500
podcast before. And it's funny, you know, we'll talk about like different things you can do to
00:48:19.260
prepare, but like all of them, all their advice is like, just avoid the fight. Do whatever you have
00:48:24.640
to do to avoid escalating the conflict and just get out of there. I mean, that's like the number one
00:48:33.020
And those guys are very skilled at what they do. I mean, they're excellent combatives, experts,
00:48:37.560
experts. But the truth is the best way to win a gunfight or a knife fight or any kind of fight
00:48:45.680
Right. So, Andrew, I mean, I thought of this funny hypothetical. I wanted to robot because I
00:48:51.980
remember this from law school days and I think it was torts. And I want to get your take on this.
00:48:57.320
Let's say you're in a situation, you're defending yourself using non-lethal force, you know, say a guy's
00:49:02.200
just punching you. So, you decide to punch back. But through some freak accident, the guy gets
00:49:10.160
bodily like maimed or he dies. You didn't intend that at all. What are the criminal and civil
00:49:18.860
So, I should mention up front, I tend to focus on the criminal aspect of things, less the civil.
00:49:27.520
No, I'm happy to address the civil, but I want to explain why I chose that emphasis. And it's
00:49:33.140
simply because I feel like if I can keep my clients out of jail, they can always make more
00:49:37.080
money. So, to my mind, the civil is rather less important. And especially these days,
00:49:43.140
frankly, when there's a number of organizations out there that offer various forms of kind of
00:49:47.480
self-defense insurance for having acted in self-defense, you can't really get that kind
00:49:52.160
of protection in the criminal context. But normally, if someone attacks you and you use
00:49:58.980
a particular degree of force, the perception of whether or not that degree of force is justified
00:50:02.980
is from your subjective perception of the threat. If it turns out that other person has some
00:50:07.780
unforeseeable weakness, that if you simply punch them in a way that would normally not cause death
00:50:15.040
or grave bodily injury, but they suffer some kind of cerebral hemorrhage because of their inherent
00:50:19.560
weakness, you're not expected to know that. And you're going to be held accountable for that.
00:50:23.960
That's different than if you do something that is foreseeable that would have caused them death
00:50:28.500
or grave bodily harm. So, for example, normally, if someone punches you and you shove them back,
00:50:33.720
that would be a non-deadly force self-defense, perfectly appropriate. But if they're standing on
00:50:39.000
the edge of a cliff and you shove them, you know they're going over the cliff. And that's foreseeable.
00:50:44.380
So, that would be perceived as a lead form of self-defense. It's just a shove, but it's a shove
00:50:48.720
that's foreseeably going to cause them death or grave bodily harm because of other circumstances
00:50:53.480
of which you were aware. But if you weren't aware of them, it's not going to be a cause of liability
00:50:59.500
Gotcha. So, after all that we've talked about, there's through the nuances of self-defense,
00:51:06.000
the legalities of it, how should that change the way people train when defending themselves?
00:51:12.800
Well, it's interesting because, as you can imagine, people come to, we do classes on this
00:51:19.600
for the country. We do 30 or 40 of these a year in pretty much every state. And throughout the whole
00:51:24.800
day of the class, we're basically telling people what I've been saying on this program. Don't get
00:51:28.560
into a fight. If you don't have to, the risks, the physical risks and the legal risks are really
00:51:32.660
tremendous. So, if you can possibly avoid it, avoid it. But people also have to recognize that
00:51:39.520
there may come a point in which you can avoid it. And then you have to fight in order to defend
00:51:45.440
yourself. One of the things we do is rerun people through a shooting simulator, self-defense simulator
00:51:50.700
using a laser pistol and a video of an incident. And sometimes what we see is people are, they've
00:51:56.060
gotten the message of don't fight, don't fight, don't fight. And they're facing this video threat
00:51:59.760
and they don't fight, they don't fight, they don't fight. But they don't fight for so long that the
00:52:03.740
video kills them simulator. And so, what people need to keep in mind is there's a long period in which
00:52:08.900
you don't want to fight. And then when the circumstances are met in which you're legally
00:52:12.620
authorized to fight, you might need to go to 100 miles an hour and fight hard right now.
00:52:18.680
So, what we really are trying to encourage people to do is not simply to tell them not to fight,
00:52:22.780
but make sure they understand the circumstances in which it's not allowed so that they know the
00:52:27.400
circumstances in which it is lawfully fought. So, when they reach that threshold, they don't have
00:52:31.960
to be tentative. They don't, the situation's not ambiguous. They know that now is the time to
00:52:37.000
fight 100% and win that physical conflict. We don't want them to fight before because of all
00:52:42.800
the risks we talked about, but we do want them to fight as rigorously as possible once the law
00:52:50.000
So, it's sounding like, you know, active simulations are probably one of the best ways to do that.
00:52:54.940
Especially simulations that correctly establish kind of the legal elements so that the people are
00:53:00.280
being tested and challenged on knowing when that threshold has been crossed. The key is people
00:53:05.460
can't use force too soon because that's not lawful. We don't want them to use force too late because
00:53:10.640
that means they've lost the physical fight if they use force too late. And if you lose the physical
00:53:14.460
fight, everything else becomes rather less pressing. So, they have to be able to identify under stress
00:53:20.360
what that threshold is when it's been reached so they know when they're allowed to fight.
00:53:25.260
That's why we teach this law of self-defense stuff so people can identify where that threshold is
00:53:29.940
and be able to fight decisively when the law permits it.
00:53:34.180
Awesome. And I guess also training that threshold, right? Making sure you're not using lethal force
00:53:41.520
Absolutely. And this is, by the way, something that, you know, we tell people when they buy our
00:53:46.220
book, for example, don't just read the book cover to cover and think that you're done. This is a
00:53:51.160
lifelong pursuit. Just like when you own a firearm, you don't, responsible people don't just go out,
00:53:56.360
buy a gun, throw it in the nightstand and consider themselves done. You practice with it. You dry
00:54:01.220
fire with it. You make sure that you maintain your proficiency. That applies to this legal knowledge
00:54:05.900
too. We encourage people when they read about a self-defense event in the newspaper, on TV,
00:54:11.420
on the internet, apply the knowledge they've acquired from the book or our classes. Look for
00:54:15.920
those five elements. Try to figure out where a person could have done a better job. Could they have
00:54:20.120
made their self-defense stronger? What did they do that weakened their claim of self-defense?
00:54:24.800
Were they in a position when they used force to be legally entitled to use that force? It's a kind
00:54:29.860
of mental dry firing in the legal context. When you're under stress, you need to be able to make
00:54:35.000
these decisions quickly. So you want that knowledge to be fresh and actionable in your mind.
00:54:39.920
Awesome. Well, Andrew, this has been a great conversation. Where can people learn more about
00:54:44.520
The best way to learn about our book and our work is at our website. It's simple,
00:54:48.900
www.lawofselfdefense.com. As I mentioned, we do classes all over the country.
00:54:54.800
We have an instructor's program. We have, of course, the book and all kinds of ways that
00:54:58.900
people can access this information. Awesome. Well, Andrew Branca,
00:55:01.660
thank you so much for your time. It's been a pleasure.
00:55:04.760
My guest today is Andrew Branca. He's the author of the book,
00:55:06.800
The Law of Self-Defense. It's available on amazon.com. Also check out Andrew's website,
00:55:10.760
lawofselfdefense.com, where you find more information about his work. And finally,
00:55:14.180
check out our show notes at aom.is slash self-defense law,
00:55:17.840
where you can find links to resources where we can delve deeper into this topic.
00:55:20.120
Well, that wraps up another edition of the Art of Manliness podcast. For more manly tips and
00:55:35.100
advice, make sure to check out the Art of Manliness website at artofmanliness.com.
00:55:38.420
Our show is edited by Creative Audio Lab here in Tulsa, Oklahoma. If you have any audio editing
00:55:42.160
needs or audio production needs, check them out at creativeaudiolab.com. As always, we appreciate
00:55:47.100
your continued support. And until next time, this is Brett McKay telling you to stay manly.