Cheaper Than Dirt! Shooter’s Log readers know that the world isn’t always nice, so we take care to protect ourselves and our families. But if you’re like most people, your preparations are dangerously incomplete, even if you’ve done the guns and training right. What you’re likely not ready for is the life-changing battle that looms after any defense encounter: the legal system.
The Law of Self Defense, 2nd Edition, The Indispensable Guide for the Armed Citizen, helps shooters prepare for the legal encounter after a self-defense event. The author, Andrew F. Branca, Esq., is the foremost expert in U.S. self-defense law across all 50 states, whose expertise has been used by the Wall Street Journal, the Chicago Tribune, NPR, numerous other media organizations, as well as many private, state, and federal agencies. He is a Massachusetts lawyer, Life Member of the National Rifle Association (NRA), and Adjunct Instructor on the Law of Self Defense at the SIG Sauer Academy in Epping, NH. He regularly lectures and speaks throughout the country on how to protect yourself against both an attack and the legal machine after.
Outside the courtroom, Branca is a multi-division Master-class competitor in IDPA and an NRA-certified firearms instructor. He holds or has held concealed carry permits for Massachusetts, Connecticut, Rhode Island, New Hampshire, Maine, Pennsylvania, Florida, Utah, Virginia, and other states.
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This is the introduction to The Law of Self Defense, 2nd Edition, excerpted in full with permission of the author.
Consider this: There were 5.8 million murders, rapes, robberies, assaults, and sexual assaults in the US in 2011. There were another 17.1 million burglaries and thefts. That’s a crime of these types for every 13.5 people. In one year alone. Astonishing, isn’t it? (Statistics according to the Bureau of Justice Statistics and the Uniform Crime Report of the FBI.)
This is why self defense is so important. It lies at the core of what it means to be free. Protecting our futures and our families against evil men is a fundamental human right. If you are anything like me, the alternative—to live at the mercy of evil people—is simply unacceptable. I will not.
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. Nevertheless, calling the police when in danger will almost never help. The bottom line is criminals, like predators in nature, do not attack when conditions favor their prey, when the sheepdog is alert beside the sheep. Predators attack opportunistically when the prey is unprotected. In other words, when the cops can’t respond fast enough.
The bitter reality is that when an attack comes you won’t be standing in front of the police station. You’ll likely be alone, or burdened (tactically speaking) with small children or an elderly parent. You could even be sound asleep. Your attacker will choose you because he sees you as easy prey.
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 perhaps the top priority of every parent. Adults, however, must see the world for what it is, both very good and very bad, and prepare for the latter so they can safely enjoy the former. (An outstanding book on this topic is “The Gift of Fear” by Gavin DeBecker.)
The good news is that because we know how evil people target their prey we can use this knowledge to reduce our vulnerability. Avoid looking weak and the bad guy will pass you by to seek easier prey. Stay alert and aware of your surroundings, appear confident, avoid places where you can get cornered, and generally create the perception that you’re more work than it’s worth. Criminals are often stupid, but also lazy and can usually differentiate between easy and difficult victims. There’s more than enough easy prey for them. If you look difficult they’ll tend to move on.
Of course, sometimes nothing works, the predator decides for whatever reason that you’re the special of the day, and you can’t do anything to prevent his attack.
Fortunately, most Americans are allowed to carry a weapon that will stop even the most vicious predators. Even if they are themselves small, weak, or even handicapped. I speak, of course, of the modern handgun, aptly identified by Samuel Colt as “the Great Equalizer.”
Handguns are relatively inexpensive, common, easy to conceal, and increasingly accessible at moments of crisis, thanks to the expansion of concealed carry laws. This means that the vast majority of law-abiding adults never have to be vulnerable. Should a bad guy pick them, the armed person can meet the attack with fangs of his (or her) own.
I should note that this book analyzes the law as it relates to any type of self defense. That doesn’t always have to be a gun. It could be karate, pepper spray, or even yelling. I strongly encourage the use of each type of defense in its proper place—not every problem is a nail, not every solution is a hammer—but I focus here on deadly force because that is where the stakes are greatest.
It’s surprising, shocking even, to realize just how much power over life and death the law of self defense grants us. The most heinous murderer imaginable must have his Miranda rights read to him, receive free legal counsel, be tried before a jury and found guilty beyond a reasonable doubt, receive an appeal, another appeal, yet another appeal, and spend perhaps 10 years or more in legal due process before the state can lawfully take his life.
Yet you can legally accomplish the same end with a single, small movement of your trigger finger. In a single instant you can choose to take the life of another human being, with no need for prior authorization or due process of law. So long as you can show that what you did was justified self defense you can walk away, free of criminal sanction.
But there’s the rub. You must show that your defensive actions were lawful. Fail to do so and you’ll see your freedom will vanish like smoke in the air.
This book focuses, obviously, on the law of self defense, and leaves defensive training to others. In no way does this imply, though, that your first priority shouldn’t be survival. If you are in a fight for your life, for the life of your spouse or your children or your parents, you MUST win. Period.
But winning the physical contest is far from the end of the matter. Not hardly. Because now begins the legal battle for your life.
As mentioned, society doesn’t require any pre-approval before you use force, even deadly force, to protect yourself. You may simply act when it’s necessary. But all that freedom built into the front end of the system is more than balanced by a massive and unforgiving evaluation of what you did at the back end. Beginning the moment you use force, and sometimes even the instant you threaten force, the justice system kicks into gear like a massive steam-era machine, with monstrous gears and pistons, to evaluate your actions under a microscope and crush you for a misstep.
If you pass the criminal justice “machine’s” examination, you go free. If not . . . well, a murder conviction is usually 20 years to life, while manslaughter is “only” 15 years or so (but can be much longer if you used a gun). You’re probably going to miss some time at work. Maybe your kid’s wedding. Maybe everything. If the system decides that your defensive force falls outside the strict boundaries of the law, welcome to the end of your life as you knew it.
I am sure many of you have come across stories where people use deadly force in self defense and have few difficulties afterwards, legal or otherwise. There was that old lady who shot the late-night intruder, or the young woman who killed the rapist dragging her from her car. These might lead you to wonder, “What do I have to worry about? As far as I can tell, when good people use guns for protection, they’re not even arrested. I don’t have anything to worry about.”
When good people use guns to defend themselves in the right way and face no legal consequences no one is happier than me. In truth, however, a large proportion of those people avoided a grueling legal fate simply because some legal authority chose not to prosecute them . . . not because they couldn’t have done so.
One could, of course, go through life and hope for the best. Hope that if you ever need to protect yourself everyone will see your actions for what they were, even if you failed to jump through all the right hoops. After all, you’re one of the good guys, right? Surely they’ll know that.
And you might, indeed, get lucky. The problem is that you are putting your future in other people’s hands. If there is ever a conflict between their interests and yours, they get to choose whose wins—and their choice will probably favor their agenda over yours.
To make matters worse, none of the people who will have been put in control of your fate will understand what it was like at that desperate moment. Adrenaline was surging through your bloodstream, your hands were cold and clammy, your vision was tunneling, your hearing was shutting down, and suddenly you terrifyingly realized that these might be your last moments alive.
But as far as they’re concerned you’re just another mug shot and case file, not all that much different from the rapist they arrested yesterday or the burglar they’ll get tomorrow—both of whom, by the way, will proclaim their innocence just as loudly as you.
Given that you’ve always thought of yourself as one of the “good guys” it can come as something of a shock to find yourself disarmed, handcuffed, and dumped in the back of a cruiser. Your new title is now “suspect.” Congratulations. That guy you stopped with extreme prejudice when he tried to take your life? He’s won the status of “victim,” awarded posthumously.
The officers responding to the scene are not there to be your friend and provide solace after a harrowing experience. They are there to investigate the events, determine if what happened was a crime, and identify, locate, and arrest the bad guy. Unless you live in a very small town, or are prone to get into trouble, these officers will be strangers to you. You’re just another face among the often unpleasant, and sometimes murderous, people they are obliged to deal with every day.
In many jurisdictions, the mere fact that a shot was fired will get you unceremoniously handcuffed and win you a free ride to the police station and a booking. This doesn’t make the police good guys or bad, they’re just people doing their jobs.
Similarly, the prosecutors have no personal knowledge of you. Your file is just one of many hundreds that come across their desk. They will not consider what is in your best interest. They will prosecute you if they think they will be successful. Period. That’s their job.
The judge, too, knows nothing of you personally. If the prosecution successfully indicts (and, as the cliché goes, a decent prosecutor can get a ham sandwich indicted), then expect to go to trial, spend several hundred thousand dollars in the process, and burn through a number of months to years of your life. All the while with a possible murder conviction hanging over your head and your entire future in doubt.
And, finally, there’s the jury. Jurors know less about your case, even at the trial’s conclusion, than almost anybody else involved. The trial process carefully controls what information is presented to them, so there is a great deal of information known to you, and to the lawyers, and the judge, and the general public for that matter, which the jury will never hear before they render a verdict.
Even if the jury of your peers was given all the evidence favorable to you, that doesn’t mean they’ll see it that way. If you ever have the misfortune to be present during a jury selection process, you’ll get a keen sense that some of your “peers” don’t have the collective IQ of a household thermometer. They also are shockingly susceptible to a prosecutor’s tale of wrongdoing. You do not want to place your life in the hands of such people if you can avoid it.
Now, all those treacherous legal waters I just described still assume that everyone involved is fair. Too often, however, that is not the case. A “good bust” can get a cop a promotion; a large investigation might set a detective up for a shot at the Chief position. Prosecutors routinely seek political office later in their careers. What better way is there to get favorable press coverage, and lots of it, than by taking on a big case, even if the evidence is a bit wishy-washy around the edges? Even the judge, accustomed to dealing only with local matters, may enjoy that sweet, sweet, 15-minutes of national attention more than you find comfortable.
And it’s possible it could get even worse than just unfair. Much worse. What if your case raises these people’s political returns beyond anything they could have imagined? What if it provides them a once-in-a-lifetime opportunity for career advancement? For example, what if you are forced to kill, in self defense, someone of a different race than your own? The entire criminal justice process could become racially energized, to the considerable detriment of your due process rights.
I just painted a very dim portrait. But there are things you can do to minimize your legal risk.
The best strategy to avoid getting thrown into the gears of the criminal justice system are, ironically, the same as those strategies to avoid getting targeted by a criminal: don’t appear vulnerable. In the context of this discussion, don’t allow yourself to appear legally vulnerable.
If an arrest isn’t worth the paperwork it just might not happen.
Once the investigation is done, if your case looks fruitless, these resources will be reassigned to more promising targets. After all, there’s a reason why Federal prosecutors have a conviction rate well above 95%. They simply don’t pursue cases they don’t think they’ll win.
In order to avoid being picked as a prosecutor’s pet case you want to look as legally invulnerable as possible. Even one red flag of weakness in your case will attract prosecution like blood in the water will attract a shark.
So how does one avoid the “red flags?” Simply stated, obey the law and be prepared with a compelling story of innocence. Sounds simple, right?
And yet that’s not actually simple, is it? The challenge is knowing what the laws you need to follow say, and then how to make that compelling story of innocence match those laws.
That is the purpose of this book: to serve as your go-to source for self defense law. It will help you to develop a legally sound defense strategy to protect yourself from prosecution and conviction should you be compelled to use force in self defense.
Self-defense law has many danger zones where you can step just so far but no further. Knowing where those are will give you the confidence you need to ensure your safety before, during, and after the fight. This book will show you how to adhere so tightly to what’s required (or even just encouraged) that there isn’t so much as a glimmer of light between your conduct and what the law demands.
Of equal importance is what this book will not do. It will not teach you how to hurt or kill someone and then hide behind a false facade of self defense. If you are looking for a way to “game” the legal system for such purposes please return the book for a refund because you will be sorely disappointed.
Indeed, the cornerstone of this book is that you should avoid violent conflict whenever possible. As Sun Tzu, the ancient Chinese general and author of The Art of War noted, “To subdue the enemy without fighting is the highest of skills.” Lethal force is legitimate only when no other reasonable option exists. Period.
Second, this book will not turn you into a lawyer. It is true that after reading it you will almost certainly know far more about self-defense law than any lawyer you run into. The sad reality is that most lawyers are woefully ill informed on this aspect of the law. In my three years in law school we spent only a few minutes on the topic, and genuine self defense cases are too far and few between for many lawyers to accumulate much real-world experience. Reading this book will give you far more exposure the law of self defense than most lawyers experience over their entire careers.
Preparing and presenting an effective legal defense, however, requires a tremendous diversity of skills and expertise, nearly all of which we won’t even touch on here. The laws governing evidence and criminal procedure alone take intense study and years of practice before true expertise is achieved. Equally important are the particular facts of your case and personalities of the prosecutor, judge, and jury. All of these are part of the legal arts that only a skilled and experienced criminal defense lawyer can master. When the time comes to fight the legal battle it is essential that you obtain exactly such counsel.
Also, laws change. We have expended tremendous effort to ensure that the statutes, case law, and jury instructions of this book are up to date. One of them, however, could change within weeks, even hours, of publication. In order to get the most up-to-date understanding of the law of self defense in your state I strongly encourage you to use this book to establish a solid foundation and then build on that foundation by regularly visiting the Law of Self Defense Web site, lawofselfdefense.com.
The Law of Self Defense blog/website contains a full-length copy of every statute, court case, and jury instruction discussed in this book (and many hundreds more not discussed here), so that you can access the primary resources that underlie what I teach. In addition, the web site is regularly updated with blog postings on breaking news about the law of self defense, including newly passed laws and decided cases.
Perhaps the best way to stay informed is to sign up for my email newsletter on the site or follow me on Twitter at @LawSelfDefense. (Your email is never, ever shared). Both are a convenient way to keep up to date.
One last note: It should go without saying that nothing in this book should be thought of as legal advice, but we live in a madly litigious society so I’ll say it anyway: nothing in this book should be thought of as legal advice. Self defense claims in particular depend heavily on the facts of a case, and it is impossible for any general guide to replace the counsel a good lawyer can provide. To paraphrase the medical profession, should this be an emergency, hang up and dial a competent lawyer.