Law of Self Defense

By

Andrew F. Branca

Attorney at Law

Law of Self Defense LLC

www.lawofselfdefense.com

The Law of Self Defense Principles

Copyright © 2020

Andrew F. Branca

All rights reserved.

Scripture marked NKJV is taken from the

New King James Version®.

Copyright © 1982 by Thomas Nelson.

Used by permission. All rights reserved.

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Printed in the United States of America

ISBN-978-1-943809-81-3

Version: 200402

Massad Ayoob

Foreword

It may seem odd that the first guy to write books about the laws of self-defense for the legally armed private citizen would write a foreword for a competitor’s book on the same topic. The reader deserves an explanation.

I wrote In the Gravest Extreme: the Role of the Firearm in Self-Protection in 1980. It has been a best seller ever since and remains so, not because the writer was that great, but simply because the topic is one of the most mature bodies of law in American jurisprudence. I wrote its follow-up, Deadly Force: Understanding Your Right to Self-Defense in 2014, with 34 more years as an expert witness in weapons/deadly force cases under my belt. Andrew’s book competes directly with mine. I’m here to promote the competition?

Well, yes…simply because the competition is very, very good. Like me, Andrew makes much of his living teaching the judicious use of lethal force, and we both offer instructor classes in the subject, and teach it to trial lawyers for CLE (bar-certified Continuing Legal Education professional credit). Andrew Branca is honest, open, and above all extremely knowledgeable about his topic. He was kind enough to mention from his first book on that taking my first level class was what inspired him on this particular course. He is one of my most high-achieving graduates. I am enormously proud of him. As I wrote in Deadly Force and have said in multiple other venues, I think his analysis of the classic case of Florida v. George Zimmerman during the trial was the Gold Standard of such reportage. I regularly follow his commentary on other breaking cases at Andrew’s blog at lawofselfdefense.com, and at legalinsurrection.com. So do most other professionals I know who go to court on these matters, and see how the rubber meets the road.

One thing Andrew did that I didn’t was to go state by state on the subtleties of case law and jury instructions. That is very important, and by itself is worth far more than the price of the book you are now about to read.

Andrew and I get a lot of each other’s students, partly because we recommend each other’s training to our own people, and partly because anyone smart enough to study this material before they need to put it to use train with multiple instructors … sort of like a health-conscious person getting a second opinion.

We use different terms for some of the same principles, but any astute person can figure out that it’s not about the terminology; it’s about the underlying reality. If you posit the same question to two (or three, or ten, or whatever) mathematics professors, you’ll get the same answer to the same problem. Confirmation is good. Double blind testing is reliable. And if those two or ten math profs each used a different formula to get to the same conclusion, the conclusion is validated all the more, and the student who understands each methodology ends up learning more.

Same here. If there is anything that Andrew and I are seen to disagree with, it’s whether under the affirmative defense principle the burden of proof lies with the State. Andrew wrote, correctly, in his first and second editions of Law of Self-Defense and in this third edition, which I consider his best yet, that the black letter law says that once self-defense is raised as an issue, it is the burden of the State to prove that the defendant in a criminal case did not act in self-defense, if the

prosecution hopes to win a conviction.

I’ve stated – in print, and in class – that I go with the definition found in Black’s Law Dictionary that the affirmative defense shifts the burden of proof onto the defendant. When your defense is Yeah, I shot him, but I was right to do so, that’s an affirmative defense. You are stipulating that you did the act, but maintaining that you should be held harmless for doing so.

Who is right? The great legal scholar Henry Campbell Black, or Andrew Branca, whom I consider to be a great legal scholar of modern self-defense law?

The answer is, they’re both right.

The black letter law of the statutes quite aside, jury psychology and trial tactics are such that those of us who’ve lost count of our trials know that we have to show that, more likely than not, it was indeed self-defense, and reasonable doubt just won’t cut it to win a defense verdict once your own lawyer has told the jury, Yeah, my client killed him. In a world where altogether too many people in the jury pool can’t tell homicide from murder – in a world where I’ve seen a lawyer scream into a TV camera There is no such thing as justifiable homicide! – nature tells us that yes, we will have to prove to those who judge us that more likely than not, to that greater than 50% certainty, we did indeed act in self-defense.

And if you carefully read what Andrew Branca wrote in the book you are reading now – the part where a self-defense element has to be established through testimony and/or evidence before the jury will even be allowed to hear the term self-defense – you’ll realize that we’re both speaking of the same reality of the trial courts.

You were wise to buy this book. I hope you read it, internalize it, and keep it to the forefront whenever you even think of reaching for a gun. You would be similarly wise to take Andrew’s training.

Thank you for caring enough about the future of your family – who, I assure you, will go through the post-incident ordeal with you – to do so.

About Massad Ayoob

An instructor in deadly force and firearms for police since 1972 and a full-time instructor in the field since 1982, an expert witness in weapons and homicide cases since 1979 and a certified police department prosecutor since 1988, Massad Ayoob has written twenty books on this and related topics and thousands of articles. He served two years as co-vice chair of the Forensic Evidence Committee of the National Association of Criminal Defense Lawyers, nineteen years as chair of the Firearms/Deadly Force Training Committee of the American Society of Law Enforcement Trainers, thirteen years on the Advisory Board of the International Law Enforcement Educators and Trainers Association, and several years on the Advisory Board of the Armed Citizens Legal Defense Network and on the Board of Trustees of the Second Amendment Foundation.

Introduction

Suddenly that fearful moment you prayed would never happen has arrived.

There’s a threat to your life.

It could be in any of a hundred different forms. Some are starkly unmistakable: the muzzle of a gun, a knife directing you into an alley, your front door smashing open.

Others are more ambiguous: the odd stranger stopping you to ask for the time, a man following a little too close in a parking lot, a group of young people taking an excessive interest in you.

In whatever form the threat presents itself, your mind responds the same way: DANGER!!!! In an instant, your body floods with adrenaline, the sensation unmistakable. You last felt it when that neighborhood kid ran out in front of your car, and you braked just in time. Your body is preparing itself for an event that’s not supposed to happen in a civilized society: violence.

The next few moments will be a turning point in your life. Minutes from now you might be dead, raped, maimed … or alive, unhurt, and safe. Months from now you might be facing years in prison … or enjoying the freedom that comes with exoneration.

The good news is that to a large extent you decide the outcome. While the physical and legal risks of violence can never be zero, you can substantially decrease those risks with the right preparation.

Some people think that the danger of violence is rare, perhaps one-in-a-million. They wonder why anyone would bother preparing for such an unlikelihood.

But consider this: There were 5.4 million murders, rapes, robberies, assaults, and sexual assaults in the US in 2014. There were another 10.9 million burglaries and thefts. That’s a crime for every 20 people and a violent crime for every 60 people—in one year alone.

That’s a far cry from one-in-a-million. Given the average classroom size, that’s about one person in every classroom you spent time in during high school. Every single year.

This is why it’s so important to be prepared. Being prepared to defend yourself against criminal predation lies at the core of what it means to be free. Protecting our future and that of our family against evil people is a fundamental human right—indeed, I would argue that it’s a fundamental human duty. If you are anything like me, the alternative—to live at the mercy of evil—is simply unacceptable. I will not.

And no one is better positioned than you to take responsibility for your personal protection, and that of your family.

We’ve all heard the phrase, When seconds count, the police are only minutes away. This is not a knock against the police. Many officers are good friends of mine, and no police force can be everywhere—nor, in a free country, would we want them to be.

But calling the police almost never helps in the moment of crisis. Criminals, like predators in nature, do not attack when conditions favor the prey, when the sheepdog is alert beside the sheep. Predators attack when the prey is vulnerable and unprotected. In other words, when the cops can’t respond fast enough.

When an attack comes, you probably won’t be standing in front of the police station. You’ll be alone, or multi-tasking a busy life, or burdened (tactically speaking) with small children. You could even be sound asleep. Your attacker will choose that moment precisely because he thinks he can get away with it.

The mere thought of this is frightening. And that’s a good thing. Properly applied, a little bit of fear keeps us alert. It is OK for children to live without fear. Indeed, that is a top priority of every parent. But adults must see the world for what it is, both very good and very bad, and prepare for the worst so they can safely enjoy the best.

The good news is that because we know how evil people target their prey, we can use this knowledge against