Law of Self Defense Presentation Slides: MD, VA, DC SAMPLE

Copyright**2015*
Andrew*F.*Branca*
All*rights*reserved.*
*
Law*of*Self*Defense,*P.O.*Box*312,*Maynard,*MA*01754,*www.lawofselfdefense.com*
*
No*part*of*this*publication*may*be*reproduced,*stored*in*a*retrieval*system,*or*transmitted,*in*any*
form,*or*by*any*means,*electronic,*mechanical,*photocopying,*recording,*or*otherwise,*without*the*
prior*consent*of*the*author.*
*
The$original$purchaser$of$this$document$is$permitted$to$make$a$single$physical$copy$(not$an$
electronic$copy)$as$a$reserve$copy$for$their$personal$use.$$Should$they$transfer$ownership$of$
this$document,$the$reserve$copy,$if$made,$must$be$transferred$to$the$same$party$or$destroyed.$
*
Printed/produced*in*the*United*States*of*America*
*
ISBNP13*978P0P9888677P3P4*
*
Version*20150707*
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NOTE:&&This&is&NOT&intended&to&be&a&stand1alone&book.***
*
The*contents*of*this*book*are*a*text*version*of*the*presentation*slides*of*the*Law*of*Self*Defense*
Seminar*conducted*in*Maryland*on*June*27*&*28,*2015.**Much*of*the*communication*during*that*
seminar*was,*of*course,*verbal.**That*verbal*component*is*not*captured*in*this*text,*which*as*a*
conversion*from*a*slide*deck*will*read*much*as*would*an*outline*with*bulleted*lists.***
*
This*book*is*primarily*intended*as*a*supplement*to*that*seminar,*and*it*is*made*available*primarily*
as*a*useful*statePspecific*reference*to*those*students.***
*
If*you*did*not*attend*that*seminar,*however,*this*book*can*still*be*of*considerable*value*if*paired*
with*a*solid*understanding*of*selfPdefense*law*generally.**Along*those*lines*you*may*find*it*useful*
to*acquire*The*Law*of*Self*Defense,*2nd*Edition,*available*in*both*print*($22.46,*Prime*eligible)*
and*Kindle*($9.99)*format.**That*book*covers*all*the*relevant*selfPdefense*law*concepts*in*an*easyP
toPaccess*manner*more*typical*of*a*regular*book,*and*includes*relevant*selfPdefense*law*at*a*high*
level*from*all*50*states.*
*
The*combination*of*highPlevel*content*of*the*The*Law*of*Self*Defense,*2nd*Edition*and*the*highly*
detailed*statePspecific*content*of*this*book*will*most*closely*replicate*the*complete*value*delivered*
in*the*course*of*a*live,*statePspecific*Law*of*Self*Defense*Seminar*or*Online*Training*class.*
*
PPAndrew*F.*Branca,*Attorney*at*Law*
2015 Law of Self Defense
LOSD Seminar: Frederick MD (6/27/15)
Syllabus
Introduction & Goals!
Law & Legal Principles!
Element 1: Innocence!
Element 2: Imminence!
Element 3: Proportionality!
Element 4: Avoidance!
Element 5: Reasonableness!
Defense of Others!
Defense of Property!
Consciousness of Guilt
Talking with the Police!
Crafting a Legally Sound Self-Defense Strategy!
Was it Worth It?
SEMINAR
Maryland, Virginia, & DC
Self-defense Law
Izaak Walton League
Frederick MD
June 27, 2015
Law of Self Defense Seminar
Law of Self Defense 2015 MAY NOT BE DUPLICATED BY ANY MEANS/NON-COMMERCIAL USE ONLY
www.lawofselfdefense.com
Process
Attorney Andrew F. Branca
Within each of those sections we will cover multiple legal

principles.
Third decade of practicing law in the Commonwealth of

Massachusetts, SD specialization since 1997.
Each will be explained in plain English, including its

relevance to self-defense in a legal and tactical sense.
Lifelong competitive shooter.
Representative law from each jurisdiction will be displayed,

so you can be confident this IS the law.
Concealed carry and 2nd Amendment absolutist.
We will NOT READ EACH law shown. Simply no time.
Guest instructor at Sig Sauer Academy in NH
You will be provided with every law cited here.
Frequent speaker on self-defense, 2A issues at law school

symposia and industry events (NRA Convention)
At founding of IDPA, #13, Master-class SSP, CDP

More than 20 years a Life Member NRA and Instructor
Can also obtain copy of slides (>400) for nominal cost.

Why Are We Here?
Murder (20 years to life)

Manslaughter (15 years)
Aggravated Assault/Battery (5-15 years)
Assault/Battery (~5 years)
To protect ourselves, our families, an innocent third person, or

our property.
Brandishing/Menacing (varies)
And we know that using force against another person is prima

facie unlawful, and can result in very serious criminal charges.
May NOT be reproduced by ANY means.
Potential Criminal Charges
Weve contemplated the possibility that someday, despite

our best efforts, we might find ourselves having to use force
against another person. to protect ourselves, our families, an
innocent third person, or our property.
Firearms enhancement, +10, +20, + Life
Ignorance is Fraught With Peril
Uncertainty of Prosecutorial Discretion
In many cases self-defense use of force was not in fact lawful

self-defense.
In many such instances the criminal justice system looks

things over and chooses to use its discretion to not arrest,
indict, prosecute, and convict them.
They genuinely thought they were acting in lawful self-defense.

But they broke a rule, they made a mistake, they goofed.
This varies tremendously by geographic region, temperament

of the prosecutors, and the people involved.
Not out of malice, but out of ignorance.

And in doing so theyve lost the justification of self-defense.
Theyve made themselves vulnerable to arrest, indictment,
prosecution, and conviction.
Preparing For What the System Can Do
Yes, I shot that person, but . . .

Fundamentally, a claim of self-defense requires that you
concede that you used force to threaten or harm another
person, but with a claim of legal justification for doing so.
We dont have the luxury of preparing merely for what the

criminal justice system might do, if its kindly disposed.
Yes, I shot that person, and they died as a result, but I did
so with the legal justification of lawful self-defense.
We need to be prepared for how to defend against what the

system can doand conduct ourselves accordingly.
If your legal claim of self-defense fails, whats left of that

statement?
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 lifetime of hard work.
Yes, I shot that person, and they died as a result.

The technical legal term for that is a confession.
Yes, I shot that person, but . . .
Dynamics of Criminal Justice

Of course, laws are not applied in a vacuum.
Self-defense is an affirmative defense, and in a making such a

plea, the [defendant] admits the assault was intentional
and carries the burden of producing evidence of justification or
excuse that raises a reasonable doubt in the minds of the
jurors.
McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808,
810 (1978).
They are applied by human beings within a broader human

construct, the criminal justice system.
Complex and often apparently bizarre rules and incentives.
Critical to understand both the literal rules, as well as how they are
actually applied in the real world of the criminal justice system.
Same in every jurisdiction.
Whats the actual playing field look like? How are goals
scored? Blocked?
Prosecutorial Avenues of Attack
Managing the Narrative

Well learn about the types of evidentiary building blocks,
the red flags, that prosecutors look for to build their
compelling narrative of guilt.
So, what are the building blocks of a narrative of guilt? What

is it that helps a Prosecutor achieve your conviction?
The legal justification of self-defense is defined by law.
And how to design your legally-sound self-defense strategy

to minimize those building blocks of guilt.
There are (up to) five specific elements of the law of selfdefense, every one of which must be present for a claim of
self-defense to stand.
Well also talk about the types of evidentiary building blocks

your defense counsel can best use to build a compelling
narrative of innocence.
To defeat a claim of self-defense, the prosecution must

destroy any one of those elements.
And how to design your legally-sound self-defense strategy

to maximize those building blocks of innocence.
If he does, self-defense goes away.

Five Elements of the Law of Self-Defense
Sometimes recognized when a claim of self-defense is

defective on particular elements.
In MD, for example, if self-defense claim is defective on
reasonableness or proportionality you FAIL on perfect selfdefense, but may qualify for imperfect self-defense.
These can be thought of as five links in a chain, from

which your self-defense claim is suspended.
This is not really a defense at allit merely mitigates a murder

to voluntary manslaughter.
If any one link breaks, the chain breaks, and self-defense fails.
Thats not a win for us good guysmanslaughter in MD is

good for 10 years, more with firearms enhancements (see
MPJI-Cr 4:35.4 Weapons Use of a Handgun or Firearm in the
Commission of a Felony or Crime of Violence).
The more numerous the defects in these links, and the

larger they are, the more legally vulnerable you appear,
and the more attractive you are as a target of prosecution.
Minimizing Your Legal Vulnerability
We talk about those at the end of this seminar, after we

discuss the nuts-and-bolts of the law of self-defense.
How those laws are applied in the real world, to real

people, in real self-defense cases.
Why bother with the nuts-and-bolts, cant we just jump to

the good stuff at the end?
How to best defend yourself and your family in

accordance with that law, and avoid accidentally
violating it through misinformation or ignorance.
There are specific steps and generalized behaviors that

you can adopt that greatly reduce your legal vulnerability
to prosecution and conviction.
Your states actual laws of self defense.
A legally-sound self-defense strategy
By the end of this seminar you will possess a robust

knowledge of:
Imperfect Self Defense
Innocence
Imminence
Proportionality
Avoidance
Reasonableness
Real vs. superficial buy-in: All guns are always loaded.
The 1st Element: Innocence
The 1st Element: Innocence

Generally, there are three buckets you can fall into in the
context of innocence (complicated a bit by VA):
Remember, the jury doesnt know ANYTHING except the

narratives they are being presented in court.
Innocentfaultless victim of aggression
How hard is it for the prosecution to build such a compelling

narrative of aggression?
That depends to a large extent on your conduct.
Mutual combatanteveryone is initial aggressor
FAIL!
Provokerprovoke the other person to be first
When we get to Building a Legally-Sound Self-Defense Strategy

we will discuss specific tactics and behaviors that strengthen this
element against prosecutorial attack.
Self-defense
Initial Aggressorfirst to threaten/use force
~Innocentat fault victim of aggression
MD: Innocence
Conditional
MD: Innocence
MPJI Cr 5:07 Self-defense
The elements of self-defense in Maryland are well-established:
You have heard evidence that the defendant acted in selfdefense. Self-defense is a complete defense and you are
required to find the defendant not guilty if all of the following
four factors are present:
(3) The accused claiming the right of self-defense must not

have been the aggressor or provoked the conflict;
Haile v. State, 66 A.3d 600 (MD Ct. App. 2013)
(1) the defendant was not the aggressor
MD: Innocence
VA: Innocence: Justifiable Homicide
The petitioner's assertion of self-defense cannot succeed

because he invited (provoked) the conflict, thus failing to
meet the third required element [of self-defense].
Haile v. State, 66 A.3d 600 (MD Ct. App. 2013)
VMJI-Cr 33.800 Self-Defense--Defendant Without Fault

If you believe that the defendant was without fault in
provoking or bringing on the [fight; difficulty], and you
further believe that:
[...]
then the killing was in self-defense, and you shall find the
defendant not guilty.
16
VA: Innocence: Excusable Homicide
VA: Innocence: Even Slight Fault
VMJI-Cr 33.810 Self-Defense--Defendant With Fault--Retreat

to Wall
The Virginia courts define bringing about the difficulty using a

very low threshold.
If you believe that the defendant was to some degree at fault

in provoking or bringing on the [fight; difficulty], but you
further believe that:
If an accused is even slightly at fault in creating the

difficulty leading to the necessity to kill, the killing is not
justified homicide. . . . Even where the [victim] struck the first
blow, the defendant was at fault [due to his violent and indecent
language] which eliminated his claim of justifiable self-defense.
Law v. Commonwealth, 2001 Va. App. LEXIS 583 (VA Ct. App.
2001)
[...]
then the killing was in self-defense, and you shall find the
defendant not guilty.
VA: Innocence
DC: Innocence
Use of provoking language.

Scott v. Commonwealth, 129 S.E. 360 (VA Supreme Court 1925)
A defendant cannot claim self-defense if the defendant was the

aggressor, or if s/he provoked the conflict upon himself/
herself.
Swann v. U.S., 648 A.2d 928 (DC Ct. App. 1994)
Verbal statements may constitute fault that defeats a claim of justifiable

self-defense.
Law v. Commonwealth, 2001 Va. App. LEXIS 583 (VA Ct. App. 2001)
Following deceased from a prior altercation.
Vaiden v. Commonwealth, 1855 WL 3502 (VA Supreme Court 1855)
Continued prior discord.
Smith v. Commonwealth, 435 S.E.2d 414 (VA Ct. App. 1993)
Invitation to deceased to fight.
Adams v. Commonwealth, 178 S.E. 29 (VA Supreme Court 1935)
DC: Innocence
DC: Innocence
CrJI 9.504. SELF-DEFENSEWHERE DEFENDANT MIGHT

HAVE BEEN THE AGGRESSOR
Self-defense may not be claimed by one who deliberately

places himself in a position where he [or she] has reason to
believe his presence . . . would provoke trouble.
If you find that [name of defendant] [was the aggressor] [or]

[provoked the conflict upon himself/herself], s/he cannot rely
upon the right of self-defense to justify his/her use of force. [One
who deliberately puts himself/herself in a position where s/he has
reason to believe that his/her presence will provoke trouble cannot
claim self-defense.]
Howard v. U.S., 656 A.2d 1106 (DC Ct. App. 1995)
17

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Copyright**2015*

2015 Law of Self Defense

LOSD Seminar: Frederick MD (6/27/15)

Law of Self Defense Seminar

Attorney Andrew F. Branca

Within each of those sections we will cover multiple legal

Third decade of practicing law in the Commonwealth of

Each will be explained in plain English, including its

Lifelong competitive shooter.

Representative law from each jurisdiction will be displayed,

Concealed carry and 2nd Amendment absolutist.

We will NOT READ EACH law shown. Simply no time.

Guest instructor at Sig Sauer Academy in NH

You will be provided with every law cited here.

Frequent speaker on self-defense, 2A issues at law school

At founding of IDPA, #13, Master-class SSP, CDP

Can also obtain copy of slides (>400) for nominal cost.

Law of Self Defense Seminar

Why Are We Here?

Murder (20 years to life)

To protect ourselves, our families, an innocent third person, or

And we know that using force against another person is prima

May NOT be reproduced by ANY means.

Potential Criminal Charges

Weve contemplated the possibility that someday, despite

Law of Self Defense Seminar

Firearms enhancement, +10, +20, + Life

Law of Self Defense Seminar

2015 Law of Self Defense

LOSD Seminar: Frederick MD (6/27/15)

Ignorance is Fraught With Peril

Uncertainty of Prosecutorial Discretion

In many cases self-defense use of force was not in fact lawful

In many such instances the criminal justice system looks

They genuinely thought they were acting in lawful self-defense.

This varies tremendously by geographic region, temperament

Not out of malice, but out of ignorance.

Law of Self Defense Seminar

Preparing For What the System Can Do

Law of Self Defense Seminar

Yes, I shot that person, but . . .

We dont have the luxury of preparing merely for what the

We need to be prepared for how to defend against what the

If your legal claim of self-defense fails, whats left of that

Yes, I shot that person, and they died as a result.

Law of Self Defense Seminar

Yes, I shot that person, but . . .

Law of Self Defense Seminar

Dynamics of Criminal Justice

Self-defense is an affirmative defense, and in a making such a

They are applied by human beings within a broader human

Same in every jurisdiction.

Law of Self Defense Seminar

May NOT be reproduced by ANY means.

Law of Self Defense Seminar

2015 Law of Self Defense

LOSD Seminar: Frederick MD (6/27/15)

Prosecutorial Avenues of Attack

Managing the Narrative

So, what are the building blocks of a narrative of guilt? What

And how to design your legally-sound self-defense strategy

Well also talk about the types of evidentiary building blocks

To defeat a claim of self-defense, the prosecution must

And how to design your legally-sound self-defense strategy