The Art of Manliness - #265： The Law of Self-Defense

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 0.98

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.

00:01:13.040 Andrew Branca, welcome to the show.

00:01:14.960 I'm very happy to be here, Brent.

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

00:04:09.800 any other kind of legal work at all.

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 0.93

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 1.00

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 1.00

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, 1.00

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 0.99

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

00:25:05.440 yourself against a non-lethal attack.

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 0.99

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 0.93

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 0.92

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 0.99

00:29:58.660 with that gun. But there's no jeopardy. There's nothing to indicate a reasonable person that he's 0.99

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 1.00

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 1.00

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 1.00

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 0.99

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, 0.58

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

00:35:52.280 legal perspective.

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

00:35:58.400 latitude for reasonable mistakes.

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

00:44:58.480 reinstalling the backup to the system.

00:45:01.300 Right. Not worth it.

00:45:02.260 Not worth it. Not worth dying over.

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

00:48:31.620 rule they all have to say.

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

00:48:42.700 for people like us is to be someplace else.

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

00:49:16.780 consequences of that?

00:49:18.860 So, I should mention up front, I tend to focus on the criminal aspect of things, less the civil.

00:49:24.940 Okay. So, let's focus on the criminal aspect.

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

00:50:58.500 for you.

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

00:52:47.680 permits them, assuming that's necessary.

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

00:53:39.220 when you should have used non-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

00:54:42.700 your book and your work?

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.

00:55:03.300 Thanks so much, Brent.

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.

The Art of Manliness - December 30, 2016

#265： The Law of Self-Defense

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