An Interview with Andrew Branca
Interview by Gila Hayes
At the NRA Annual Meeting in Nashville, TN last month, we saw and heard much about gun rights and about resisting encroaching laws. Not only must armed citizens know gun law, we also need knowledge of laws governing use of force in self defense. In a highly mobile society, many citizens must grasp restrictions applied not only in their home area, but also by a number of states, a task complicated by state-to-state differences in what is legal and what is prohibited.
This area of the law is the focus of Massachusetts attorney and life-long shooter Andrew Branca. He started teaching defense law classes for armed citizens back in 1997 with the release of the first edition of his book, The Law of Self Defense, and teaching is now back at the forefront of his attention with publication of that book’s second edition.
The Law of Self Defense’s popularity spawned not only state-specific seminars that Branca teaches throughout the nation, but also online training delving into the specific laws governing self defense for certain states. This online resource is growing, and as Branca researches and prepares material for in-person seminars in a particular state, he develops online training for that state, too, or if that state is already included in his online course offerings, he updates the lessons to keep the training current.
Branca, a Network Affiliated Attorney, participated in our exhibit at the 2015 NRA Annual Meeting, so it was natural to ask him some questions about how the various laws work. He skillfully explains self defense laws in layperson’s language, doing so with illustrative word pictures and examples, so let’s switch now to our Q & A format to preserve the clarity of his instruction.
eJournal: When you returned to the lecture circuit with the second edition of The Law of Self Defense, I was pleased to see you were teaching your seminars nationally, although it seems to me with the patchwork of laws from one state to another, that must surely be a challenge.
Branca: It is very important to distinguish between gun law and use of force law. What I cover is use of force law: under what circumstances can you use force against another person in defense of yourself, your family and your property?
That is completely different than gun law, which determines things like what do you need to get your concealed carry permit, where can you carry, what kinds of guns are legal in your state or your county or your city? Frankly, I find gun laws to be so varied even within a given state and the rules have changed so often that it is impossible to keep up on a nationwide level. I am not sure it can be done!
eJournal: Within use of force law, are some elements fairly uniform?
Branca: It is about 80% the same across the country. The other 20%, however, is important! That 20% determines the difference between whether you are acquitted or go to prison. From my perspective as an instructor, I know that what I really have to learn for a new state is the 20% that might be different.
eJournal: Are there commonalities in use of force laws state to state, or put another way, what areas are not uniform of which we should be aware?
Branca: There are always five elements: innocence, imminence, proportionality, reasonableness and avoidance that are the same in the whole country. Within each of those, there tends to be a limited number of options that states choose from, so you just need to know the option for that particular element.
For example, one of the greatest areas of variance is on the element of avoidance. We have states that have imposed a legal duty to retreat, like MA, where you have to retreat before you can use either deadly or non-deadly force in self defense.
Most states that impose a duty to retreat–and there are 16 of them–only impose that duty to retreat before you use deadly force. So as long as you restrict yourself to non-deadly force, there is no duty to retreat.
Then there are a couple of states that actually impose the duty to retreat before non-deadly force but not before deadly force which is the opposite, and you think, “Well, how could that be? How could states come to opposite decisions?” Well, it is not unreasonable if you think about it, because if you’re facing a deadly force threat, you’d only use deadly force in self defense if it is imminent, if it is about to happen right now. What that state has determined is, if it is that imminent, we are not going to impose upon you a duty to retreat before you can defend yourself against a deadly attack, but if all you’re facing is a non-deadly threat, yeah, we want you to walk away from that because the risk is not death.
Then there are the stand your ground states, and they come in a couple of different flavors. There are what I call the “soft” stand your ground states like Florida where there is no legal duty to retreat before you use force in self defense. You can’t automatically lose your right of self defense for a failure to retreat, but the prosecution is still free to argue to the jury that the fact that you had a safe avenue of retreat and you didn’t take advantage of it makes your conduct unreasonable. So you don’t lose on the element of avoidance, but you lose on the element of reasonableness. The prosecutor still successfully attacks your self-defense claim on the issue of retreat, even in a stand your ground state.
Then there are “hard” stand your ground states. There are four of them; one is TX. In those states the finder of fact, typically the jury, is statutorily prohibited from even mentioning the possibility of retreat. In “hard” stand your ground states like TX, the prosecution is not free to make the argument to the jury, “Sure, he did not have a legal duty to retreat, but he COULD have, and that would have been the reasonable thing to do.”
So there are at least five options for the issue of avoidance: “soft” stand your ground states and “hard” stand your ground states, “hard” duty to retreat states, the ones that impose it for deadly force and the ones that impose it for non-deadly force. Think of each option as a bucket. So when I do a new state, I try to determine which of those buckets do they fall in to, and when I know which bucket they fall into I have that element categorized.
eJournal: Your book, The Law of Self Defense, outlines self-defense law for each of the 50 states, but how has covering state-specific law developed within your seminars and online training programs?
Branca: The book covers all 50 states at a high level. For example, if I’m working on WA State and looking for a court decision on the issue of imminent threat for the book, I’ll find a good court decision on that issue then I’ll stop my research there. But when I do a seminar, I look at EVERY relevant self-defense law case in that state. It could be 50; it could be 100; it could be 150. So I might have 20 or 30 court cases that deal with the issue of imminence and I pick and choose relevant materials from as many as I need. The seminar is a much more comprehensive, holistic and thorough look at the law than we can do in the book. If we did that level of detail in the book, we’d have an 800-page book that cost $1,000 and no one would be able to buy it.
eJournal: You just mentioned case law, which adds another layer of complexity to the layperson’s quest to understand the law that binds their use of force in self defense. How does it fit in with reading and trying to understand a state’s laws?
Branca: Statutory language is very treacherous. The statutes need to be thought of as the legislature’s desired intent—what they would like to see happen. But the legislators that pass the statute are not the ones applying it to real people in real cases. The courts interpret the statute and apply it to real individuals involved in self-defense cases.
It is not at all unusual for the courts to interpret a statute in a way that seems the opposite of what a plain English language reading would indicate. So, for example, there are a lot of statutes that say you can use deadly force to prevent a felony, sometimes they even say you can use deadly force to prevent any felony. But when it is applied in court, the courts say, “No, no, no! We’re not going to do that. We will allow you to use deadly force to stop a deadly felony but not a non-deadly felony.” Well, the statute doesn’t say that; the courts add that dimension.
If you just relied on the statute, you might think any felony, say, auto theft, would qualify. If someone is stealing an unoccupied car there is no threat to any individual, so that would not justify the use of deadly force to prevent that felony even when the statute suggests in fact that you can.
eJournal: Are there other risks in relying exclusively on our understanding of statutory law?
Branca: I cover the law in detail because I want people to have the confidence that the information they are getting is not just one person’s opinion. There is a lot of very bad opinion out there, on Internet gun forums, for example. I want people to know this is not just Andrew Branca saying these things. This is what the law says, because here is the statute, here are the jury instructions, here are the court decisions that illustrate how it is actually applied on that particular issue.
I don’t want people to use that level of detail to feel like, “Now I know the law, I can skate really close to the edge.” A lot of any self-defense case is highly subjective, and if you have an unsophisticated jury (and most of them are not terribly sophisticated), and you have a very skilled prosecutor (and a lot of prosecutors are very skilled), the prosecutor will drive that subjective narrative very powerfully.
You can’t take the risk that a prosecutor will be able to push you that last foot over the edge of the cliff and convince the jury that your conduct was unreasonable, or that you used force too soon, or he does not like the color of your gun or you had a round in the chamber. People ask me all the time, “What about having a round in the chamber?” or they ask about hollow point bullets or using a strange gun.
eJournal: I’m not surprised you frequently get those questions, in light of how much has been published about court-defensible guns, court-defensible ammunition and related concerns.
Branca: I tell people if you’re well within the bounds of self defense, it is good if the prosecutor is making those arguments! If he is talking about any of that really ancillary nonsense that prosecutors like to talk about, he is not attacking what he needs to attack to disprove your claim of self defense. Either he feels that he has you so close to the edge that he can’t quite beat you on the merits, but he is going to bring in these ancillary elements to try to cloud the jurors’ minds and make them think you are a bad actor.
To disprove your claim of self defense, a prosecutor has to attack one of those five elements: innocence, imminence, proportionality, avoidance and reasonableness–period! The color of your gun and the hollow point bullets are not legally relevant to the attack he is supposed to make, but if you are on the border of any of those five elements, they might be enough to push you that last couple of inches off the edge in the jurors’ minds, so they decide to come back with a guilty verdict or a compromise verdict.
The other possibility is the unfortunate case of the politically-motivated prosecution, where they really have no hope on the merits at all–like in the George Zimmerman trial. George Zimmerman’s case was the cleanest self-defense shoot I have ever seen brought to trial. They couldn’t attack any of the five elements; they didn’t have any evidentiary basis to attack on. So all they talked about was the ancillary stuff: the fact that he had a round chambered, the fact that he was frustrated with crime in his neighborhood. None of that is really relevant to any of the five elements of self defense, but it is all they had to talk about.
Normally, I tell people, look, if you are well within the bounds of self defense, and the prosecutor is talking about the color of your pistol—that is good news for you. Every minute he is talking about that he is not talking about something that really matters. All those kind of cosmetic characteristics of the firearm ought not be important unless you’ve already really screwed up your self-defense case.
Now having said that, there are two areas where I encourage people not to mess with their concealed firearm. Stay away from making changes to the trigger. Rather, try to buy a gun with a trigger that you like OEM from the factory.
The other thing is safety devices on carry guns. Never, ever, ever deactivate a safety device on a firearm that came that way from the factory. There is no way you are ever going to convince a juror that the factory believed that device was necessary to the safe functioning of the gun, but you thought differently and you are the one who is correct. You will never sell that to a jury.
eJournal: How is that likely to play out?
Branca: You run the risk that the prosecutor will make a compelling narrative that you acted not with malice, but negligently. If you acted negligently, self defense is not a legal defense against criminal negligence. You run the risk of stripping yourself of the ability to make an effective self-defense argument in court because they are not arguing that you acted intentionally, they are arguing that you acted negligently.
Your defense then cannot be self defense, because they are essentially saying you did it by accident. Self defense is never a defense to an accident; self defense is only a defense to a deliberate act. For self defense, you say, “Yes, I shot that person, but I had legal justification for doing so,” but if you shot the person by accident–you had your gun out and someone startled you and you shot them–you can’t claim self defense. That was not a self defense shooting; that was an accidental shooting.
You’ll end up getting hit with criminal negligence. The punishment for that is a form of manslaughter, so you will end up getting 15 years and in a lot of states they have mandatory add on years if you used a firearm to commit the crime. In FL, for example, they have the 10-20-Life law, you’re looking at 15 years and another up to life for having used a firearm in the death of another person, so you are looking at almost as much time as if you were convicted of deliberately murdering that person with premeditation.
eJournal: Laws and restrictions on self defense are complex enough without making it worse by opening yourself up to accusations of negligence. That was a good explanation. This seems like a good place to take a break, so I’d like to wait until the next edition to move on to another facet of the law of self defense that you mentioned in passing a while ago, that of jury instructions. Let’s tackle that subject and some questions I have on attorneys’ knowledge about self-defense law in a second installment of this interview in next month’s online journal.
For now, Andrew, thank you so much for all of the energy, study and research you have put into becoming such a great source of information on the statutes and regulations governing use of force in self defense, and more importantly, how they apply to the decisions we make not only in the moments building up to a use of force incident, but the earlier choices we make about guns and other equipment, too.
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Readers, please return next month for more instruction and information from Andrew Branca and The Law of Self Defense. For more information on Branca’s seminars, online training and his book, see http://lawofselfdefense.com. His business contact information is Law of Self Defense, PO Box 312, Maynard, MA 01754, telephone 978-331-0988.
Click here to return to May 2015 Journal to read more.