Sunday, February 28, 2016

"Law of Self Defense", Andrew Branca

On Valentine's Day, Mrs. Drang and I went on a very romantic outing to attend a seminar by Andrew Branca on the Law of Self Defense in Washington and Oregon. Andrew is the author of the book by the same title, available at his web site Law of Self Defense, or on Amazon. Because, after all, what isn't available on Amazon these days? (Ammo. Ammo isn't available on Amazon. And kittens.)(I think.)

As responsible gun owners we all know that, to borrow a phrase from President Reagan, much of what folks know about self-defense just isn't so.  By now one benefit of all those forensic crime shows on TV is that people should be aware of the fact that it is not, in fact, a good idea to shoot the bad guy on your front porch and drag him inside, but that does not mean that common sense necessarily prevails in all cases.

It is a common place to say that you are justified in using deadly force in self-defense if you were in fear for your life or safety, but is it enough to say "I was in fear for my life"? What about the common advice to ask for your lawyer and then clam up, refusing to say anything? What will the police make of that, and what if that lawyer doesn't magically appear right away?

As for the self-defense claim, much of the class was spent going over the 5 factors that go into making up justified acts of self-defense:
  1. Innocence
  2. Imminence
  3. Proportionality
  4. Avoidance (we'll come back to this...)
  5. Reasonableness
Other topics included Defense of Others, Defense of Property, Consciousness of Guilt (and how it can impact your legal defense),  Self-Defense Immunity, and Interacting with the Police. (These are all straight out of the syllabus. The presentation PowerPoint slides -- yes, I still think PowerPoint is a tool of the devil! -- were available for purchase in a printed, bound book, and I'm glad I did!)(Andrew made good use of it, BTW, speaking to the audience, not the screen, and not simply reading each slide.)

The discussions of each of these topics were salted liberally (pardon the expression) with citations of the statutes, regulations, court decisions and case law, and in some cases jury instructions, that impacted the points being discussed for both Oregon and Washington State.

For example, sources of Self-Defense law in Oregon include:
  • Oregon Revised Statutes SS161.190, Justification as a defense
  • Case law: State v. Wolf, 317 P.3d (OR Ct. App. 2013)
  • Jury Instructions: Uniform Criminal Jury Instructions (UCrJI) No. 1107 Defense-Physical Force-Defense of Person
(Note that Andrew's book goes over much of this statutory material; that is, each chapter discusses key points and has an appendix with citations form statutes and case law form each state where such exists. So if you can't get to his seminar, you can still read his book.)

Part of the reason I have waited two weeks before posting this review of the class is that I have been debating how much I should say about the content. I am not a lawyer. I am not qualified to give legal advice (assuming anyone would be fool enough to take legal advice from a blog post...) So I think that I will just cover a couple of points I found notable, and suggest that, if you are interested, you purchase Andrew's book, and if he does not have a seminar scheduled where you can get to one, you should try and see if a local gun club or range/training facility would be interested in hosting him.

I alluded above to an exception to the "Self Defense Factor" "Avoidance"; this came up as part of a lengthy discussion of "Castle Doctrine" and "Stand Your Ground".

Avoidance imposes a duty to retreat; under certain circumstances there is no duty to retreat. Generally speaking, you have no duty to retreat in your home, AKA "Castle Doctrine". (Unless it is also the home of the person attacking you.) Some states extend the definition of "home" to the boundaries of the home, some stop them at the exterior walls. Even if there is  duty to retreat it only applies if one can do so safely; jumping off a cliff does not count.

Stand Your Ground is different; "SYG" laws generally say something to the effect that "one need not flee an attack if one is where one has a legal right to be."

Note that while "SYG" may be included in statute, it may still be advisable to retreat if one may do so safely! Why be there when trouble comes looking for you? Just because the law says you do not have to avoid it, does not mean you shouldn't make it work...

Washington State is what Andrew referred to as a "Hard" Stand Your Ground jurisdiction, as explained in the Pattern Jury Instructions:
WPIC 16.08 No Duty To Retreat
It is lawful for a person who in a place where that person has a legal right to be and who has reasonable grounds for believing that [he][she] is being attacked to stand [his][her] ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat.
And also in at least one court opinion:
In Washington, one who is assaulted in a place he has a right to be has no duty to retreat. Flight, however reasonable an alternative to violence, is not required.
State v. Williams, 916 P.2d 445 (WA Ct. App. 1996)
Complicating the Stand Your Ground issue is the possibility of the prosecution in a criminal case, or a lawyer in a civil case, making the argument that you were the aggressor. In this case, you will want witnesses that you made efforts to de-escalate and leave the scene, in order to "regain your innocence", as it were.

Oregon does not have statutory law regarding Stand Your Ground; however, in the 2007 case State v. Sandoval (156 P.3d 60) the Oregon Supreme Court rendered the following opinion :
Nothing in [Oregon self-defense statutes] suggests that a person who reasonably believe that another person is about to use deadly force against them must calculate whether it is possible to retreat from that threat before they use deadly physical force in self defense.
 Which sounds great except that, in a footnote, advised that "a person who wishes to avoid criminal liability may well be required to avoid the danger..."

Which seems prudent anyway, if you can.

On another front, neither Oregon nor Washington State have any self-defense immunity from either criminal prosecution or civil suit. Washington does, however, have a (so far as I know) unique Self-Defense reimbursement law under 9A.16.110 of the Revised Code of Washington, if it is determined in a trail that you acted in self-defense, the state can be required to reimburse you of you for the expenses incurred in defending yourself at trial.

I have never heard of this being done. I am also unaware of any charges being dropped because the prosecutor decided it was not worth it due to this. Nor do I know anyone who has volunteered to be a test case.

I see that I have barely scratched the surface of this seminar. The slide deck ran to nearly 420 slides, counting the conclusion, and I have skipped much material, as much to keep this post a manageable length and to avoid getting over my head on legal technicalities as to avoid getting sued by a lawyer for copyright infringement. (Just kidding!)(I think...)

So I will wrap it up by saying that the experience was well worth the money, and it is highly recommended; if you cannot attend the appropriate session for your state, and are at all concerned about the legal aspects of self-defense, then you should at least read Andrew's book, and see about bringing him to your neck of the woods.

NOTE for Washingtonians: Dave Workman's excellent book Washington Gun Rights and Responsibilities covers a lot of ground that Andrew's book and seminar did not, like Open Carry, where you can and cannot carry in the state, reciprocity, and so forth. Also highly recommended.

1 comment:

NotClauswitz said...

Maybe we could get Andrew to come to GBR XI and give a talk??