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!