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LOSD

2016

LOSD Seminar: WI (2-24-16)

THE SYLLABUS

SEMINAR
Wisconsin

Introduction

Laws and Legal Principles


Presented by Andrew Branca
West Bend WI
February 24, 2016

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Element 1: Innocence

Element 5: Reasonableness

Element 2: Imminence

Defense of Others

Element 3: Proportionality

Defense of Property

Consciousness of Guilt

Element 4: Avoidance

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Self-Defense Immunity

Introduc4on

Interacting with the Police

Crafting a Legally Sound


Self Defense Strategy

Was it Worth It?


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Why Are We Here?

Attorney Andrew Branca

Weve contemplated the possibility that someday, despite our best eorts, we might

Experienced

nd ourselves compelled to use force against another person.

Third decade of pracJcing law in the Commonwealth of


MassachusePs, self-defense specializaJon since 1997.

To defend ourselves, our families, an innocent third person, or our property.

Respected

For the lawyers, we contemplate that well be called upon to represent a client who

Guest instructor at the Sig Sauer Academy in NH. Frequent public


speaker on self-defense, 2A issues at law school symposia, and at
industry events (NRA Annual MeeJng 2014)

has used force with claimed legal jusJcaJon or excuse.

We know that using force against another person is prima facie unlawful, and can

Member of the Gun Community

result in very serious criminal charges.

At the founding of IDPA, #13, Master-class SSP, CDP. More than 20


years a Life Member NRA and Instructor

Advocate for Defensive Rights
Concealed carry and 2nd Amendment absoluJst.
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Potential Criminal Charges

UNLESS in Lawful Self-Defense

1.Murder (Life)

Self-defense is an absolute defense to criminal liability for the intenJonal use of


force against another.

2.Manslaughter (15-40 years)

However, it is very binary:

3.Aggravated Assault/BaPery (~10 years)


4.Assault/BaPery (90 days to 6 months)

Rules of
Self-Defense

5.Brandishing/Menacing (varies)


Zero criminal
liability


Firearms enhancement: e.g. 10-20-Life: May add many years to criminal sentence.
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Outside Rules of
Self Defense


TOTAL criminal liability

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UNLESS in Lawful Self-Defense

Why Law of Self Defense?


20 years ago...

Best then to stay well within the rules.

If you shoot a guy outside your house...

But what are the rules?

The advice was TERRIBLE

THAT is why were here.

It was SO bad it could turn a good shoot into manslaughter.


So Id correct their misunderstanding of the law, and theyd ask me where they
could nd a good resource on what self-defense law actually was.

There simply were not any good sources, if not a lawyer, and not many great
sources even if you were a lawyer (primary legal research).

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LOSD Seminar: WI (2-24-16)

Law of Self Defense, 2nd Edition

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Law of Self Defense Seminars

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Book: The Law of Self Defense, 2nd Ed. (2013)



Amazon.com best-seller:

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LOSD Self-Defense Simulator Module

USCCA

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LOSD State-Specific Online Courses

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LOSD Instructor Program

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Legal Consults

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Mostly Bad Sources of Self-defense Law


Most Lawyers
Most Police Ocers
Most Firearms Instructors
Most Gun Magazines
Most Internet Gun Forums

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Mostly Bad Sources of Self-defense Law

Meet GunForumGuy27
Self Defense Law Expert

Most Lawyers

30+ years assuring everyone online that he knows what hes talking about.

Most Police Ocers


Confidence

Most Firearms Instructors

Creativity

Most Gun Magazines

Legal Expertise

Most Internet Gun Forum


Worst of all: Mainstream Media

Warning: Never again will you be able to enjoy a self-defense law thread on a gun forum
youll be the only person in the thread who knows what theyre talking about.
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Often mistaken, but never uncertain.

Often mistaken, but never uncertain.

Almost everything you read in the mainstream media about self-defense law and selfdefense cases must be assumed to be wrong, unJl proven otherwise.

Subject Within Your ExperJse:


Man, this journalist is an idiot!

Subject Outside Your ExperJse:


Man, this journalist is a genius!

Michael Chrichton: The Murray Gell-Mann Amnesia eect

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Ferguson Rubber Bullets

Ferguson Rubber Bullets

Ferguson MO riots.

Ryan J. Reilly is a D.C.-based reporter who covers the JusJce Department and the
Supreme Court. He has covered federal law enforcement and legal news since 2009.

Mr. Reilly was assigned to cover the Ferguson riots.

I believe these are rubber bullets, can anyone conrm?

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Ferguson Rubber Bullets

So Andrew Branca is the best source?


No! I am not a source of the law.
I am an educaJonal channel to connect you with the source.

My goal is to add value in the process by translaJng legalese into plain English, and
to make the informaJon acJonal from a tacJcal perspecJve.

For the lawyers, my goal is to provide a conceptual framework to facilitate ecient
and correct legal analysis of self-defense cases.

Goal: to enable bePer informed, more condent self-defense law decisions: tacJcally
for the defender, strategically for the aPorney.

Mission: to win both the physical ght and the legal ght.

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So What IS the source of the Law?

Self Defense Law Compilation

1.Statutes

2.Court Decisions
3.Jury InstrucJons

PERIOD (well, also constuJonal law, on rare occasions)

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Sources of Self-Defense Law

Why Bother?
Isnt a good shoot a good shoot? Sure.

Manchester NH, Jan. 10, 11:30pm, 65yo 4 11 105lbs, returning home from night
shit, accosted by 511 200lbs assailant, who blocked her from her front door,
demanded her purse, and reached for her with his let hand. She drew a .32 Kel-Tec
from her pocket and shot him in the chest.

He said Ow.

This woman never had any tacJcal training, never took a Law of Self Defense Seminar.

She won the physical ght, and wont face any legal peril. A good shoot.

Statutes:
Wisconsin Statutes (W.S.). CHAPTER 939. CRIMES GENERAL PROVISIONS
SUBCHAPTER III. DEFENSES TO CRIMINAL LIABILITY
939.48 Self-defense and defense of others.

Case Law:
State v. Mendoza, 258 N.W.2d 260 (WI Supreme Court 1977)

Jury InstrucJons:
Wisconsin Jury InstrucJons - Criminal (2015)
800 . Privilege: Self-defense: Force less than that likely to cause death or great
bodily harm
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Why Bother?

Consequences of Losing Legal Battle

The trouble is that a bad shoot is a also a bad shoot.



And self-defense is very binary: your conduct either qualies, or it doesnt.

When lawyers get a call from a client, were stuck with the facts the client gives us.
Bad facts, bad case. Theres a limit to what we can accomplish.

Best be educated beforehand so you give us good facts and we make a great case
from them.

For the typical law-abiding ciJzen, losing the second baPle the legal baPle can be
nearly as devastaJng as losing the physical baPle.

There are people in our society who do just ne in prison.

There are people in our society who thrive in prison.

Law-abiding people like us are not among them.

Dont need to spend much Jme in prison before life as you know it is destroyed over.

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Ignorance is Fraught with Peril

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Cant believe IM arrested for self-defense!

In many cases a defendants self-defense was not in fact lawful.



They genuinely thought they were acJng in lawful self defense.

But they broke a rule, they made a mistake, they goofed.

Not out of malice, but out of ignorance.

And in doing so they lost the jusJcaJon of self defense.

It was their acJons that made them vulnerable to arrest, indictment, prosecuJon and
even convicJon.
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Uncertainty of Prosecutorial Discretion

Preparing for What the System Can Do

In many instances the criminal jusJce system looks things over and chooses to use its
discreJon to not arrest, indict, prosecute, and convict you.

This varies tremendous by geographic region, temperament of the prosecutors, and
the people involved.

We dont have the luxury of preparing merely for what the criminal jusJce system
might do, if its kindly disposed.

We need to be prepared for how to defend against what the system can doand
conduct ourselves accordingly.

And what it can do, given the right evidence, is put you in prison for the rest of your
life, and strip you of every asset youve ever accumulated over a lifeJme of hard
work.

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Preparing for the Legal Battle

Minimizing Your Legal Vulnerability

With the physical baPle, because of the consequences of losing the baPle, the
prudent person prepares themselves with tools, training and pracJce.

Exactly the same must be done to prepare for the legal baPle: tools, training and
pracJce.

Thats what this seminar is all about.

By the end of this course you will posses a robust knowledge of:

1.Your states actual laws on self-defense

2.How those laws are applied in the real world

3.How to best defend yourself and your family in accordance with that law, and
avoid accidentally violaJng it through misinformaJon or ignorance

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Disclaimers: For the Non-lawyers


By the end of this seminar you will know more about the law of self defense than just
about any lawyer you might run into.

BUT... this seminar does NOT make you a criminal defense aPorney.

There are enormous and vitally important areas of the law we do not even touch
upon such as rules of evidence and criminal procedure that can win or lose a case.

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No Gaming the System!


Fair warning: Nothing you learn today will enable you to manipulate the law of selfdefense in order to commit bad acts against innocent people and escape punishment.

This course teaches the laws governing self-defense, not how to get around those
laws.

If gaming the system is your goal, youll be disappointed (and likely to spend a lot of
Jme in prison).

Prosecutors love self-defense cases where the defender tried to game the system.
Theyre invariably easy convicJons.

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Disclaimers: For EVERYONE

Disclaimers

This seminar does not consJtute legal advice.



I am not licensed to pracJce law anywhere except MassachusePs, and I am not
providing legal advice here.

Legal advice can only be oered between an aPorney and client in a formal
relaJonship involving a specic situaJon, and by a lawyer licensed to pracJce in that
state.

This is, as described, a seminar, in the academic sense of the word.

If you are in need of legal advice, retain competent legal counsel licensed to pracJce
in the relevant jurisdicJon.

This seminar does not establish an aPorney-client relaJonship....



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...and thats why Im glad...


Laws and Legal Principles

... that I own a backhoe.


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Yes, I shot that person, but ...

Dynamics of Criminal Justice


Of course, laws are not applied in a vacuum.

Human beings use a broad human construct, the criminal jusJce system, to apply
them.

This system has complex and oten seemingly bizarre rules and incenJves that are
unrelated or even contradictory to the language within their statutes.

Its criJcal you understand both the literal rules (statutes), as well as how they are
actually applied in the real world.

If the criminal jusJce system were a football game, what does the playing eld look
like? How are goals scored? Blocked?

Fundamentally, self-defense claims require you to concede that you harmed another
person on purpose. Your defense is that you were legally justified in doing so.
You would need to say, through your defense attorney:

Yes, I shot that person, and they died as a result, but I did so
with the legal justification of self-defense.

If your legal claim of self-defense fails, whats let of that statement?


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Prosecutors Love to Win

Prosecutors Hate to Lose

People who lack a drive to win do not become prosecutors.



Once driven prosecutors have decided you are a vulnerable target of prosecuJon,
they will use all of their training, professional skill, and rhetorical talent to convict
you.

Thats their job, their professional duty.

Our job, our duty, when acJng in lawful self-defense, is to make ourselves a hard
target to the prosecutor.

Prosecutors dont like to bring cases to trial that without a strong prospect for
success.

As much as they love to win, they hate to lose.

From the moment they rst see your case, they are making a shrewd assessment of
your vulnerability to prosecuJon.

If, through your own ignorance or error, your acJons fall outside the bounds of lawful
self-defense, thats an easy convicJon.

And thats like blood in the water to a shark.

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Prosecutors Hate to Lose

The Impossibility of Absolute Truth

A prosecutors hate to lose is our opportunity.



Cases that look tough to win generally receive a lower priority than similar cases that
look easier to win, and may be kicked out of the criminal jusJce pipeline enJrely.

You want to look like the toughest case possible.

You want to be perceived as the lowest priority case on that desk.

Mission: Know the rules, stay well inside them, minimize your legal vulnerability.

The people who will be judging your acJons were not there.

They do not know what really happened.

Eye witnesses do not know what really happened.

Even YOU do not know what really happened.

We can only know what the evidence suggests really happened.

The criminal jusJce system is a bureaucraJc machine designed to administer jusJce,
not nd absolute truth.

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Competing Narratives of Guilt/Innocence

Narrative Building Blocks

Your liberty hangs upon two compeJng narraJves being presented to the jury.

The prosecutor is telling the jury a narraJve of guilt.

Your lawyer is telling the jury a narraJve of innocence.

The Jury will base their verdict solely on the informaJon within these two narraJves.

Both narraJves are constructed out of the building blocks of evidence presented at
trial.

Some building blocks favor the Prosecutor, some the Defense.

The more of those building blocks from which the Prosecutor infer guilt, the more
legally vulnerable you appear.

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Managing the NarraJve


Types of evidenJary
building blocks the
prosecutors look for

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How to design a
self-defense
strategy that
minimizes guilty
building blocks

Prosecutorial Avenues of Attack


So what are the building blocks of a narraJve of guilt? What is it that helps your
lawyer?

Self defense is a claim of legal jusJcaJon thats been dened by law.

There are (up to) ve required elements in that claim, all of which must be present
for your lawyer to succeed in your defense.

To destroy your defense, the prosecutor need only destroy ONE of them.

If he succeeds, self-defense goes away.

Types of evidenJary
building blocks your
lawyer looks for

How to design a
self-defense
strategy that
maximizes innocent
building blocks

Your Story of
Innocence

Prosecutors Story of
Guilt

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Five Elements of Self-Defense Law


Innocence

Five Elements of Self-Defense Law


Innocence

NOT LEGAL

Imminence

ProporJonality

Imminence

ProporJonality

LEGAL

NOT LEGAL

LEGAL
WHAT IF YOURE
HERE?

Avoidance

Avoidance

Reasonableness

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Reasonableness

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The Legal Playing Field


100%

Guilty

LIKELIHOOD OF GUILT

Standards of Evidence
0%

Not Guilty

How MUCH evidence is required for an issue to be considered proven?





BY A PREPONDERANCE OF THE EVIDENCE
BEYOND A REASONABLE DOUBT

Standards of Evidence:
Where does the line go?

Burdens of Proof:

What evidenJary building blocks may we use?


Who must convince the jury which side to put you on the eld?
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