law of self defense presentation slides: md, va, dc sample

Copyright**2015*Andrew*F.*Branca*All*rights*reserved.**Law*of*Self*Defense,*P.O.*Box*312,*Maynard,*MA*01754,*www.lawofselfdefense.com**No*part*of*this*publication*may*be*reproduced,*stored*in*a*retrieval*system,*or*transmitted,*in*any*form,*or*by*any*means,*electronic,*mechanical,*photocopying,*recording,*or*otherwise,*without*the*prior*consent*of*the*author.**The$original$purchaser$of$this$document$is$permitted$to$make$a$single$physical$copy$(not$an$electronic$copy)$as$a$reserve$copy$for$their$personal$use.$$Should$they$transfer$ownership$of$this$document,$the$reserve$copy,$if$made,$must$be$transferred$to$the$same$party$or$destroyed.$*Printed/produced*in*the*United*States*of*America**ISBNP13*978P0P9888677P3P4**Version*20150707**NOTE:&&This&is&NOT&intended&to&be&a&stand1alone&book.****The*contents*of*this*book*are*a*text*version*of*the*presentation*slides*of*the*Law*of*Self*Defense*Seminar*conducted*in*Maryland*on*June*27*&*28,*2015.**Much*of*the*communication*during*that*seminar*was,*of*course,*verbal.**That*verbal*component*is*not*captured*in*this*text,*which*as*a*conversion*from*a*slide*deck*will*read*much*as*would*an*outline*with*bulleted*lists.****This*book*is*primarily*intended*as*a*supplement*to*that*seminar,*and*it*is*made*available*primarily*as*a*useful*statePspecific*reference*to*those*students.****If*you*did*not*attend*that*seminar,*however,*this*book*can*still*be*of*considerable*value*if*paired*with*a*solid*understanding*of*selfPdefense*law*generally.**Along*those*lines*you*may*find*it*useful*to*acquire*The*Law*of*Self*Defense,*2nd*Edition,*available*in*both*print*($22.46,*Prime*eligible)*and*Kindle*($9.99)*format.**That*book*covers*all*the*relevant*selfPdefense*law*concepts*in*an*easyPtoPaccess*manner*more*typical*of*a*regular*book,*and*includes*relevant*selfPdefense*law*at*a*high*level*from*all*50*states.**The*combination*of*highPlevel*content*of*the*The*Law*of*Self*Defense,*2nd*Edition*and*the*highly*detailed*statePspecific*content*of*this*book*will*most*closely*replicate*the*complete*value*delivered*in*the*course*of*a*live,*statePspecific*Law*of*Self*Defense*Seminar*or*Online*Training*class.**PPAndrew*F.*Branca,*Attorney*at*Law*

2015 Law of Self Defense LOSD Seminar: Frederick MD (6/27/15)

May NOT be reproduced by ANY means. 1

Law of Self Defense Seminar Law of Self Defense 2015 MAY NOT BE DUPLICATED BY ANY MEANS/NON-COMMERCIAL USE ONLY www.lawofselfdefense.com

SEMINAR Maryland, Virginia, & DC

Self-defense Law Izaak Walton League

Frederick MD June 27, 2015


Introduction & Goals!Law & Legal Principles!Element 1: Innocence!Element 2: Imminence!Element 3: Proportionality!Element 4: Avoidance!Element 5: Reasonableness!Defense of Others!Defense of Property!Consciousness of Guilt Talking with the Police!Crafting a Legally Sound Self-Defense Strategy!Was it Worth It?

Syllabus


Process Within each of those sections we will cover multiple legal principles.

Each will be explained in plain English, including its relevance to self-defense in a legal and tactical sense.

Representative law from each jurisdiction will be displayed, so you can be confident this IS the law.

We will NOT READ EACH law shown. Simply no time.

You will be provided with every law cited here.

Can also obtain copy of slides (>400) for nominal cost.


Third decade of practicing law in the Commonwealth of Massachusetts, SD specialization since 1997.

Lifelong competitive shooter.

At founding of IDPA, #13, Master-class SSP, CDP Concealed carry and 2nd Amendment absolutist. More than 20 years a Life Member NRA and Instructor Guest instructor at Sig Sauer Academy in NH Frequent speaker on self-defense, 2A issues at law school symposia and industry events (NRA Convention)

Attorney Andrew F. Branca


Weve contemplated the possibility that someday, despite our best efforts, we might find ourselves having to use force against another person. to protect ourselves, our families, an innocent third person, or our property.

Why Are We Here?

And we know that using force against another person is prima facie unlawful, and can result in very serious criminal charges.

To protect ourselves, our families, an innocent third person, or our property.


Potential Criminal Charges

Murder (20 years to life) Manslaughter (15 years) Aggravated Assault/Battery (5-15 years) Assault/Battery (~5 years) Brandishing/Menacing (varies)

Firearms enhancement, +10, +20, + Life




Ignorance is Fraught With Peril In many cases self-defense use of force was not in fact lawful self-defense.

But they broke a rule, they made a mistake, they goofed.

They genuinely thought they were acting in lawful self-defense.

Not out of malice, but out of ignorance.

And in doing so theyve lost the justification of self-defense.

Theyve made themselves vulnerable to arrest, indictment, prosecution, and conviction.


Uncertainty of Prosecutorial Discretion In many such instances the criminal justice system looks things over and chooses to use its discretion to not arrest, indict, prosecute, and convict them.

This varies tremendously by geographic region, temperament of the prosecutors, and the people involved.


Preparing For What the System Can Do

We dont have the luxury of preparing merely for what the criminal justice system might do, if its kindly disposed.

We need to be prepared for how to defend against what the system can doand conduct ourselves accordingly.

And what it can do, given the right evidence, is put you in prison for the rest of your life, and strip you of every asset youve ever accumulated over a lifetime of hard work.


Yes, I shot that person, but . . . Fundamentally, a claim of self-defense requires that you concede that you used force to threaten or harm another person, but with a claim of legal justification for doing so.

Yes, I shot that person, and they died as a result, but I did so with the legal justification of lawful self-defense.

If your legal claim of self-defense fails, whats left of that statement?

Yes, I shot that person, and they died as a result.

The technical legal term for that is a confession.


Yes, I shot that person, but . . . Self-defense is an affirmative defense, and in a making such a plea, the [defendant] admits the assault was intentional and carries the burden of producing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors. McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978).

Same in every jurisdiction.


Of course, laws are not applied in a vacuum.

Complex and often apparently bizarre rules and incentives.

Critical to understand both the literal rules, as well as how they are actually applied in the real world of the criminal justice system.

Dynamics of Criminal Justice

They are applied by human beings within a broader human construct, the criminal justice system.

Whats the actual playing field look like? How are goals scored? Blocked?




Managing the Narrative Well learn about the types of evidentiary building blocks, the red flags, that prosecutors look for to build their compelling narrative of guilt.

Well also talk about the types of evidentiary building blocks your defense counsel can best use to build a compelling narrative of innocence.

And how to design your legally-sound self-defense strategy to minimize those building blocks of guilt.

And how to design your legally-sound self-defense strategy to maximize those building blocks of innocence.


Prosecutorial Avenues of Attack

The legal justification of self-defense is defined by law.

There are (up to) five specific elements of the law of self-defense, every one of which must be present for a claim of self-defense to stand.

To defeat a claim of self-defense, the prosecution must destroy any one of those elements.

If he does, self-defense goes away.

So, what are the building blocks of a narrative of guilt? What is it that helps a Prosecutor achieve your conviction?


Five Elements of the Law of Self-Defense Innocence Imminence Proportionality Avoidance Reasonableness

These can be thought of as five links in a chain, from which your self-defense claim is suspended.

The more numerous the defects in these links, and the larger they are, the more legally vulnerable you appear, and the more attractive you are as a target of prosecution.

If any one link breaks, the chain breaks, and self-defense fails.


Imperfect Self Defense

Sometimes recognized when a claim of self-defense is defective on particular elements.

Thats not a win for us good guysmanslaughter in MD is good for 10 years, more with firearms enhancements (see MPJI-Cr 4:35.4 Weapons Use of a Handgun or Firearm in the Commission of a Felony or Crime of Violence).

This is not really a defense at allit merely mitigates a murder to voluntary manslaughter.

In MD, for example, if self-defense claim is defective on reasonableness or proportionality you FAIL on perfect self-defense, but may qualify for imperfect self-defense.


Minimizing Your Legal Vulnerability

By the end of this seminar you will possess a robust knowledge of:

How those laws are applied in the real world, to real people, in real self-defense cases.

Your states actual laws of self defense.

How to best defend yourself and your family in accordance with that law, and avoid accidentally violating it through misinformation or ignorance.


A legally-sound self-defense strategy

There are specific steps and generalized behaviors that you can adopt that greatly reduce your legal vulnerability to prosecution and conviction.

We talk about those at the end of this seminar, after we discuss the nuts-and-bolts of the law of self-defense.

Why bother with the nuts-and-bolts, cant we just jump to the good stuff at the end?

Real vs. superficial buy-in: All guns are always loaded.




The 1st Element: Innocence

Remember, the jury doesnt know ANYTHING except the narratives they are being presented in court.

How hard is it for the prosecution to build such a compelling narrative of aggression?

That depends to a large extent on your conduct.

When we get to Building a Legally-Sound Self-Defense Strategy we will discuss specific tactics and behaviors that strengthen this element against prosecutorial attack.


The 1st Element: Innocence

Generally, there are three buckets you can fall into in the context of innocence (complicated a bit by VA):

Initial Aggressorfirst to threaten/use force

Mutual combatanteveryone is initial aggressor

Provokerprovoke the other person to be first FAIL!

Innocentfaultless victim of aggression Self-defense

~Innocentat fault victim of aggression Conditional


MD: Innocence

MPJICr 5:07 Self-defense You have heard evidence that the defendant acted in self-defense. Self-defense is a complete defense and you are required to find the defendant not guilty if all of the following four factors are present: (1) the defendant was not the aggressor


MD: Innocence

The elements of self-defense in Maryland are well-established: (3) The accused claiming the right of self-defense must not have been the aggressor or provoked the conflict; Haile v. State, 66 A.3d 600 (MD Ct. App. 2013)


MD: Innocence

The petitioner's assertion of self-defense cannot succeed because he invited (provoked) the conflict, thus failing to meet the third required element [of self-defense]. Haile v. State, 66 A.3d 600 (MD Ct. App. 2013)


VA: Innocence: Justifiable Homicide

VMJI-Cr 33.800 Self-Defense--Defendant Without Fault If you believe that the defendant was without fault in provoking or bringing on the [fight; difficulty], and you further believe that: [ . . . ] then the killing was in self-defense, and you shall find the defendant not guilty.




VA: Innocence: Excusable Homicide VMJI-Cr 33.810 Self-Defense--Defendant With Fault--Retreat to Wall If you believe that the defendant was to some degree at fault in provoking or bringing on the [fight; difficulty], but you further believe that: [ . . . ] then the killing was in self-defense, and you shall find the defendant not guilty.


VA: Innocence: Even Slight Fault The Virginia courts define bringing about the difficulty using a very low threshold. If an accused is even slightly at fault in creating the difficulty leading to the necessity to kill, the killing is not justified homicide. . . . Even where the [victim] struck the first blow, the defendant was at fault [due to his violent and indecent language] which eliminated his claim of justifiable self-defense. Law v. Commonwealth, 2001 Va. App. LEXIS 583 (VA Ct. App. 2001)


VA: Innocence Use of provoking language. Scott v. Commonwealth, 129 S.E. 360 (VA Supreme Court 1925) Verbal statements may constitute fault that defeats a claim of justifiable self-defense. Law v. Commonwealth, 2001 Va. App. LEXIS 583 (VA Ct. App. 2001) Following deceased from a prior altercation. Vaiden v. Commonwealth, 1855 WL 3502 (VA Supreme Court 1855) Continued prior discord. Smith v. Commonwealth, 435 S.E.2d 414 (VA Ct. App. 1993) Invitation to deceased to fight. Adams v. Commonwealth, 178 S.E. 29 (VA Supreme Court 1935)


DC: Innocence A defendant cannot claim self-defense if the defendant was the aggressor, or if s/he provoked the conflict upon himself/herself. Swann v. U.S., 648 A.2d 928 (DC Ct. App. 1994)


DC: Innocence CrJI 9.504. SELF-DEFENSEWHERE DEFENDANT MIGHT HAVE BEEN THE AGGRESSOR If you find that [name of defendant] [was the aggressor] [or] [provoked the conflict upon himself/herself], s/he cannot rely upon the right of self-defense to justify his/her use of force. [One who deliberately puts himself/herself in a position where s/he has reason to believe that his/her presence will provoke trouble cannot claim self-defense.]


DC: Innocence Self-defense may not be claimed by one who deliberately places himself in a position where he [or she] has reason to believe his presence . . . would provoke trouble. Howard v. U.S., 656 A.2d 1106 (DC Ct. App. 1995)

law of self defense presentation slides: md, va, dc sample

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