Post on 19-Jun-2020
transcript
Seminar Topic
You Carry to Keep from
Losing Your Life
Know the Law to Keep
from Losing Your
Freedom
The Law of Self Defense
Responsible Concealed Carry1. Constant Situational Awareness
2. Sound Gun Handling Skills
3. Accomplished Marksman
4. Knowledge of Tactics & Strategies
5. Mental Fortitude to Pull the Trigger
6. Legal Requirements to Employ Deadly Force
7. Understanding of Physiological Impact of a DGU Crisis
8. Legal Criteria to Claim Self Defense After DGU
Disclaimer
This presentation does NOT constitute legal advice
– I am NOT licensed to practice law
–Legal advice can only be offered by your attorney
with whom you have a formal relationship and it
involves a specific set of facts and evidence
–Your attorney must be licensed to practice (criminal)
law in your state
Source Material
• The Law of Self Defense – Andrew F. Branca
– Recommended Required Reading
• In Depth Seminar
• Online Webinar Training
– Florida Law
Other Background Material
• In the Gravest Extreme – Ayoob
• Gun Digest Book of Concealed Carry
• Defend Yourself – Pincus/Ayoob
• Florida Gun Law – Katz/Phillips
• Deadly Force – Understanding Your
Right to Self Defense – Weiner
• FL Firearms – Law, Use & Ownership – Gutmacher
Understanding the Law
• State Statutes
– Intent of the Legislature
–Florida Chapter 776: Justifiable Use of Force
• Jury Instructions
– Interpretation of the Judiciary
–FL Standard Jury Instructions – Criminal (FSJI-Cr (3.6))
• Case Law (Appellate & Supreme Courts)
–Application in Specific Circumstances
Definitions – Use of Deadly Force
776.08 Forcible Felony
• Treason
• Murder
• Manslaughter
• Sexual Battery
• Carjacking
• Home-Invasion
• Robbery
• Burglary
• Arson
• Kidnapping
• Aggravated Assault
• Aggravated Battery
• Aggravated Stalking
• Aircraft Piracy
• Unlawful Throwing, Placing,
Discharging a Bomb
• Other – Use or Threat of
Physical Force or Violence
Criminal Justice System
Criminal Justice System
• Bureaucratic machine
designed to administer
justice NOT find the absolute
truth.
• Your freedom depends on
two competing narratives
– One of Guilt (DA)
– One of Innocence (Def)
• These are all the jury will hear
Prosecution (DA)
• Love to win, hate to lose even
more
• RARLY TAKE CASES THEY
THINK THEY CANNOT WIN
– 95% Rate of Indictments
• Will prosecute for political
reasons, to make a name
• You want your case to look
like a real loser to the DA!!
Criminal Justice System
Proof
Standards of Evidence
– Preponderance of Evidence
• 50%+
– Beyond a Reasonable Doubt
• “Very High”
Burdens of Proof
– Burden of Production
• State must provide evidence to
support criminal charges
• Defendant must provide evidence
to support claim of self-defense
– Burden of Persuasion
• State bears burden of persuasion
to prove every element of crimes
charged BRD
• State bears burden of persuasion
to disprove self-defense BRD
“A reasonable doubt [is] one based
on reason which arises from the
evidence or lack of evidence”Jackson v. Virginia, 443 US 307 (US Supreme Court 1979)
Criminal Justice System
Self Defense
Your case of Self Defense depends
on proving the following five
elements:
I. Non-Aggressor (Innocence)
II. Immediacy (Imminence)
III. Parity of Force (Proportionality)
IV. Duty to Retreat (Avoidance)
V. Reasonableness
Establishing your defense
• You have the Burden of Proof
on each of the five elements
– Preponderance of Evidence
• The prosecution only has to
disprove one element BRD for
your self-defense claim to fail
• What is left? A confession!
I. Non-Aggressor / Innocence776.041
Use of force by aggressor
• Justification of self-defense
is NOT available to a person
who:
1. Is attempting or committing a
Forcible Felony
2. Initially provokes the use of
force against himself or
herself
Provoked
…does not refer to mere words
or conduct without forceGibb v. State, 789 So. 2nd 443 (FL Ct. App. 2001)
If you are, or can be made to look
like you are the aggressor, stand
your ground will not apply
I. Non-Aggressor / Innocence
Regaining Non-Aggressor
Status
• May be initial aggressor
• Withdraw physically from
conflict & communicate your
withdrawal to other party
• Subsequent engagement is a
new conflict
• Aggressor is the individual
who initiated the new conflict
776.041
(2) Claim of Self Defense is not
available to person who initially
provokes use of force UNLESS:
(b) in good faith, the person
withdraws and indicates clearly the
desire to withdraw but assailant
resumes the use of force or
threatened use of force.
Example Case – Commonwealth v. Mouzon
Situation• Mouzon in bar
– Made pass at 2 women
– They rejected his approach
– He pursued – threatened to kill
• Women & dates decided to
leave
– Mouzon confronted them
– King punched Mouzon
– Mouzon pulled gun
– King raised hands & backed away
Result• Mouzon fired twice
– Hit bystander
– Killed King
• Denied Self-defense
– Aggressor
• Mouzon claimed King used
physical force first
• Claim Denied on Appeal
• Life imprisonment
II. Immediacy / Imminence
FSJI-Cr 3.6
• The danger is about to take place
and cannot be avoided by using
other means.
• A threat of future harm is not
sufficient to prove this defense.
• Nor can the defendant use the
defense if [he] [she] committed
the crime after the danger from
the threatened harm had passed.
776.012
Use of Force in Self Defense
• A person is justified in
using deadly force if
necessary to prevent:
– Imminent death or GBH
–Commission of Forcible
Felony
II. Immediacy / Imminence
776.013
Home Protection Use of Force
• A person is presumed to have
fear of imminent death or GBH
776.013
Use of Force in Defense of
Property
• A person is justified in using
deadly force to prevent the
imminent commission of a
Forcible Felony
• When considering the matter of
threats in relation to proof of self-
defense, there must be some
evidence of an overt act expressing
an intention to immediately execute
the threats so the person
threatened has a reasonable belief
that he/she will lose their life or
suffer GBH if they do not
immediately take the life of their
adversary”
Smiley v. State, 395 So. 2nd 235 (FL 1st DCA 1981)17
II. Immediacy / Imminence
The AOJ Triad• Ability
– Does the aggressor have the
ability to cause harm
• Opportunity
– Does the aggressor possess the
opportunity to bring ability to
bear
• Jeopardy
– Would a reasonable person
perceive the aggressor is about
to exploit the A & O
Ability
• Disparity of Force
–Armed with a weapon
–Multiple attackers
–Substantial difference
in size/strength
• Male v. Female
–Known fighting ability
II. Immediacy / Imminence
Opportunity
• Aggressor with firearm always
held to possess opportunity
• Issues arise in context of impact
weapons
– Obstacles
– Distance
• Preclusion
– Duty to negate opportunity
• Distance
– Tueller Drill – 21 ft. Rule
Jeopardy
• Would a reasonable person
perceive the aggressor’s
conduct is about to cause
harm
• Words alone are not enough
but may create low
threshold for physical act to
create jeopardy
Example Case – State v. BerrielSituation• Berriel a friend of R
– Gets hysterical call from R that L was
beating her
• Berriel goes to R’s home
• 15 min later R & L arrive home
• Berriel attacks L with a knife
• Berriel charged with aggravated
assault
• Judge gave Jury Instr on “SD” but
not “Defense of Others”
Result• Berriel convicted
– SD denied on Imminence
• Appealed on Defense of
Others claim denied
– When R & L arrived home, L
was not a threat
– Harm to R was not imminent
Imminence ExceptionsInevitability
• A kidnaps & confines D –
announces intent to kill in week
• D has opportunity to kill A each
morning at breakfast serving
• Must D wait until A attack is
imminent?
• No. D may act when opportunity
is available and lethal attack is
inevitable & unavoidable2 P. Robinson, Criminal Law Defenses 131©(1)(1984)
Battered Spouse
• Battered Spouse Syndrome
recognized legally
• Prolonged spousal abuse &
expectation of future harm
• Imminence is waived when
further harm is inevitable
(must be documented prior incidents
&/or evidence)
III. Parity of Force / Proportionality
Defensive Force• Defensive Force used MUST
be in proportion to the
attacking force
• Does not necessarily mean
exactly the same type
• Assessed on totality of
circumstances
• Two factors in
assessment
Intensity• Deadly v Non-Deadly
– Guns/Knives considered Deadly
• You cannot use a deadly
force to stop non-deadly
attack
• Lack of training – vulnerable
to physiological fear
– Leads to poor decision making
III. Parity of Force / Proportionality
Duration
• Defensive force may
continue only so long as the
threat remains
• Must have a detailed
rationale for every ounce of
defensive force employed
Continuum of Force
• Bare Hands*
• Baton*
• Pepper Spray/Gel*
• Stun Gun
• Taser*
• Firearm*
Non-Deadly
Example CaseState (Martin) v. Zimmerman
• Z, neighborhood watch, observed M
who matched recent burglar
• Z called 911, M ran. 911 ask Z where
M was going. Z moved to gain sight
of M
• Z asked for LE response. M
emerged from shadows, knocked Z
to ground, beat head on sidewalk
• Z screamed for help, M covered
mouth & nose cutting off breathing
• Z’s jacket fell open revealing gun
• M reached for gun, Z, fearing
unconsciousness & death, drew
gun, fired 1 shot
• M dead at scene
• While upright & fighting, had Z
fired gun, violation of
proportionality rule
• Since M’s barehanded attack
became deadly, Z defense legal
IV. Duty to Retreat / Avoidance
Stand-Your-Ground (SYG)
• SYG only removes the duty
to retreat from the law of
self-defense
• Anywhere you have a right
to be
• 34 States have enacted SYG
• 16 States have Duty to
Retreat
Castle Doctrine
• Removes any duty to retreat
while in your home
• Includes “Curtilage”
– Porches, Lawns, driveways,
sheds, detached garages, etc.
• Includes temporary homes
– Motels, hotels, motorhomes,
camping tents
IV. Duty to Retreat / Avoidance
In SYG StatesYou must still:
I. Be the non-aggressor in the
attack
II. Be responding to an
immediate criminal attack
III. use no more force than
necessary
V. conduct yourself in a
reasonable manner
throughout
776.012
Avoidance: Deadly Force
…have the right to stand your
ground if you are not engaged
in criminal activity and are in a
place where you have a right to
be.
Note that if there was an easy opportunity to
retreat and you did not take it, the
prosecution may argue that you were not
behaving in a reasonable manner
V. ReasonablenessObjective
Reasonableness
• The reasonable & prudent
person with customization
• Imbued with defendant’s:
– Circumstances
– Capabilities
– Specialized knowledge
– Mental state
• Document knowledge &
training
776.012, 013, 031, 041
FSJI-Cr 3.6
Use of Deadly Force
A person is justified in using
deadly force if they
REASONABLY BELIEVE such
force is necessary to prevent
death or GBH or to prevent
commission of forcible felony
V. ReasonablenessSubjective
Reasonableness
• The actual belief of the
defender at the time
– Will infer your state of
mind from your own words
and conduct
• Reasonable mistakes are
OK
FSJI-Cr 3.6(f)
The danger need not have been
actual… the appearance of
danger must have been so real
that a reasonable and prudent
person in the same
circumstances would have
believed the danger to be real…
Defense of OthersReasonable Perception
776.012
Use of force in defense of
person
…use deadly force if
reasonably believe it will
prevent death or BGH to
himself, herself, or another…
Do you really know
what’s happening?
• Hazardous to get
involved
• Domestic dispute
• Undercover arrest
Defense of Property
Least Defensible
• Curtilage
• Occupied Vehicles
• Real Property (Land)
• Pets
• Personal Property
Most Defensible
• Dwellings
–Home
–Motel – Hotel
–Motorhome 776.031
Defense of Property: Non-Deadly
Force
Consciousness of Guilt
After the Use of Force
• Behavior & Conduct of the
Guilty differs in observable
ways
– Lying to the Police
– Concealing or Tampering
with Evidence
– Flight from the Scene
• Results in Jury Instruction
Case Law
• …such evidence may be
relevant because it
demonstrates that the
defendant was aware of
the criminality of his
actions…
Partin v. State, No. SC08-2348 (FL Supreme Ct. 2011)
Interacting with the Police
What to tell the Police• Some advocate “say
nothing”– Name, Right to Counsel, Silence
• Police are NOT there to be
your friend
– Ideally they have no
personal feeling about you
• Detectives are experts in
interrogation
• Miranda protections do
not begin until you are in
custody
– Pre-Miranda statements are
fair game
– Pre-Miranda silence can be
used to infer guilt
(US Supreme Ct #12-246 (2013)
Interacting with the Police
Three Interactions
1. 911/Dispatcher
2. First Responders –
Patrolmen
3. Investigative
Officers - Detectives
The 911 Call
• BE THE FIRST TO CALL
– 1st call = Complainant
• Victim
– 2nd call = Respondent
• Aggressor or Suspect
• Presents some unique
evidentiary opportunities for
the defender
Interacting with the Police
911 Call• Recorded & Admissible
– Replayed in court
• “Say Little” Approach
– Full Name
– Your Current Location
– Describe the Encounter
1. I was attacked
2. I was in fear for my life
3. I had to defend myself
• AND SAY NOTHING ELSE !
• Helps establish your burden
of production for SD
• SD requires your conceding
the use of force
• 911 call cannot be cross
examined in court
Interacting with the Police
First Responders (LEO – Patrol Officer)
• “Say Little” Approach
• EXACT SAME 911 info+
• Advise them on the location
of your weapon
• Identify exculpatory evidence
& witnesses
– Remember: If it’s not in
evidence it does not exist
• Request Medical Attention
– After life or death fight you are
in no condition to evaluate
your own well-being
• Not physically
• Not Mentally
• Not Emotionally
• If arrested, better to be
handcuffed to a clean hospital
bed, than in a drunk tank!!
Interacting with the Police
When Mirandized
• Say the “Magic Words”
– I assert the Right to Counsel
– I assert the Right to Remain
Silent
• PERIOD
• If you start to talk again you
effectively waive your right to
silence
Investigative Officers
• You say NOTHING!– Not without your lawyer
present
• Interrogation Professionals– Empathetic Foundation
– Kinesic Interviewing
– Neurolinguistic Interviewing
– Hypothetical Questioning
– Confrontational Statements
– Theme Development
Conclusions
Elements of Self Defense
I. Non-Aggressor
II. Immediacy
III. Parity of Force
IV. (Duty to Retreat)
V. Reasonableness
• Carry non-lethal option
Dealing with Authorities
• Call 911 First
– Name
– Location
– Brief Description of Event
• I was attacked
• I was in fear of my life
• I had to defend myself
Recommended Every Day Carry
EDC• Firearm of Choice
– Preferably a 9 mm
• Non-Lethal Defense
– Pepper Gel
– Stun Gun
– Kubotan/Tactical
Pen
Means of Carry– Strong side hip holster, or
as close as you can get!
– Pouch, Sling Bag, Fanny
Pack
Conclusions
First Responders
• Same as 911– Name
– Brief Description
• Exculpatory Evidence
• Witnesses
• Request Medical Help
• After Miranda, Clam Up!!
– With Carry Insurance, time to
call!
Investigative Officers
• Say NOTHING
– Unless Attorney is present
Just Remember
You Carry a Gun
to Protect Your Life!
You Must Know the Law to Protect
Your Freedom & Your Family!