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Law of Self Defense: When the prosecutor doesn’t know the law

Law of Self Defense: When the prosecutor doesn’t know the law

A Cautionary Tale: Michigan prosecutor doesn’t know that MI has “Stand-Your-Ground” law

This week’s case is not so much a case as it is a cautionary tale about the risks of relying upon the purported use-of-force law expertise of others based solely on their job title, and dangers of not you yourself being educated on that law.

I warn students in every class that certain job titles, like lawyer, cop, or firearms instructor, do not guarantee that a person in those fields knows a darned thing about use-of-force law.

Are You Sure That Lawyer Knows Self-Defense Law?

We lawyers, for example, are not taught use-of-force law to any real depth in law school—typically just a few minutes in first-year criminal law. And any lawyer who is not a criminal defense attorney has no professional need to understand it.

Even criminal defense lawyers who have a lot of experience arguing self-defense cases will mostly have experience arguing “bad guy” cases rather than “good guy” cases. These cases look very different. Absent exceptional circumstances most criminal defense lawyers will have only a handful of “good guy” self-defense cases in a multi-decade career.

By the way, this caution applies no just to lawyers generally, but even to prosecutors, criminal defense attorneys, and criminal trial judges. There was an appellate court decision out of Alaska just a year ago, Rossiter v. Alaska, where a murder conviction was overturned specifically because the appellate court found that none of the purported legal experts at trial—not the prosecutor, not the client’s defense counsel, not the trial judge—understood Alaska use-of-force law.

Are You Sure that Cop Knows Self-Defense Law?

Cops, as another example, are actually taught more use-of-force law in the police academy than most lawyers are taught in law school. But this doesn’t guarantee expertise either. Much of what they’re taught is not designed to protect the officer from prosecution. Rather, it’s intended to protect his department from being sued for the officer’s actions.

Remember, it’s the department that has the deep pockets, and while the officer has qualified immunity for acts in the performance of his duties, his department is always potentially liable to Federal §1983 suits.

Also, cops swim in different use-of-force waters than us non-cops. We are, for example, never permitted to start a fight. Cops, on the other hand, are routinely called upon to “lay hands” on a person first, such as when making an arrest.

Are You Sure That Firearms Instructor Knows Self-Defense Law?

Firearms instructors are also too often wrong about use-of-force law. It’s not because they can’t be well informed—they certain can if they make a diligent effort, as the graduates of our own Law of Self Defense Instructor Program can attest. It’s just that most of them have not had the means or opportunity to learn this stuff at a deep level.

As a result, too many instructors end up—in good faith—repeating mistaken information that they themselves were taught by their own instructors, who in turn received this misinformation from prior instructors, and so forth.

Again, a person in any of these groups might have a robust knowledge of self-defense law, if they’ve made a diligent effort to educate themselves rather than simply re-tell nonsense they’ve previously been taught themselves, but you must not assume that they know, based on their job title.

Michigan Prosecutor Doesn’t Know MI is “Stand-Your-Ground”

There’s an excellent example of this, out of Michigan this week, in a news article about a defensive shooting. The journalist got extensive quotes from an actual Benzie County prosecutor named Sara Swanson. In part, Prosecutor Swanson is quoted as saying:

“Michigan does not have a ‘Stand Your Ground’ law like, say Florida has …”

In fact Michigan adopted a “Stand-Your-Ground” law almost identical to Florida’s in 2006, only a year after Florida’s “Stand-Your-Ground” law was passed in 2005. You’d think a Michigan prosecutor in 2018 would know the state had a “Stand-Your-Ground” statute for the past 12 years, but apparently you’d be wrong.

Now, I don’t think much of journalists, especially when they cover shooting events, so it’s possible the journalist was wearing her “opposite cloak” that day and the prosecutor said the reverse of what was quoted. But I’ve seen exactly this kind of ignorance of use-of-force law by purported legal experts who ought to know better too many times to believe this simply couldn’t have happened.

Know the Law So You’re Hard to Convict

Educate yourselves! Ignorance of the law is no excuse. Assume that the so-called “legal experts” around you actually know use-of-force law at your own risk.

As we say at Law of Self Defense: You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.

Ignorance of the Law is No Excuse

Remember, folks, if you find yourself in criminal court and fighting against life in prison, ignorance of the law will be no excuse, and telling the judge and jury, “But my [firearms instructor / cop neighbor / real estate lawyer friend] told me it was lawful!” will carry no weight if what they told you is wrong.

You owe it to yourself and your family to learn this stuff yourself. And the good news is that it’s really not very complicated. There are only five elements of a claim of self-defense, just like there’s only four rules of gun safety.  You just the foundation of knowledge necessary to understand how those elements are applied under the actual laws of your jurisdiction.

Free Informational Resources from Law of Self Defense

The good news is that we offer several excellent, and free, ways to educate yourself on the actual law of self-defense.

One way, of course, is to catch our regular weekly “Law of Self Defense” posts right here at Legal Insurrection.

Another is to catch our free weekly “Law of Self Defense Show.”

Yet a third is to follow our self-defense law blog posts on our Law of Self Defense Patreon page where we make our regular blog posts freely available.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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Comments



 
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DaveGinOly | August 22, 2018 at 9:43 pm

“…the appellate court found that none of the purported legal experts at trial—not the prosecutor, not the client’s defense counsel, not the trial judge—understood Alaska use-of-force law.”

What does this say about the state of self-defense law in Alaska? And common citizens, with no training in the law, are supposed to apply it (correctly!) while under the stress of a potentially lethal attack, while busy doing something arguably more important than wasting computer time on the law of self-defense – like fighting for one’s life.

Another example of why as a juror I’d be highly unlikely to convict any person who kills another, when the defender had been acting within the law and the attack was of a criminal nature. You just don’t have the luxury of time in these situations. By the time you evaluate the threat, apply the law (as you understand it) to the situation, and react (in a manner you think is appropriate), you could be on your way to being dead. I believe the law-abiding defender has a right to stop a physical attack with lethal force, because waiting long enough to even have enough information to make the correct legal call may be waiting too long. And the defender can’t know beforehand whether he will or will not have that time, while having an absolute right to guarantee his own survival.


     
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    Another Voice in reply to DaveGinOly. | August 23, 2018 at 12:19 pm

    I agree 100%.
    Also in keeping with that time frame of in the moment of encountering police interactions and in the moment of decision making, it is now becoming a mandate that every officer be grounded with psychiatric analytical skills to determine whether they are dealing with a threat that can be attributed to the mental issues of the person who needs to be apprehended. Which in of itself would make it impossible to take immediate action of apprehending or defending without specific information of that person. That immediate moment is the difference of that officer being killed while doing his duty to protect law abiding citizens. It is the duty of those in mental health to assist them.


     
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    Mac45 in reply to DaveGinOly. | August 23, 2018 at 10:33 pm

    Well, you just go right out there and shoot someone, with whom you have a verbal argument, simply because you fear or believe that he may harm you later. That is a good strategy for a society to have. If this was the case, then every verbal argument would end in a shoot out, because neither party could take a chance that he would not be ambushed later by the other and that society would allow this.

Had to look it up and my first impression was correct…..Sara Swanson is a DimocRAT…..

“But my [firearms instructor / cop neighbor / real estate lawyer friend] told me it was lawful!”
I have wondered (after hearing some instructors speak to potential first-time gun buyers in the store) how much of Concealed Carry or Self Defense class instruction is edited to be the safest thing to say from a liability standpoint. Not because it’s the best interpretation of the law or because it will best help the person to defend themselves, but because they’re afraid someone will do something that gets them convicted, then sue the instructor for mis-informing them.

I have heard employees who self-identify as CCL and SD instructors state things like “You should always walk away first.” Which is in direct contradiction of SYG laws. (It was not said as a matter of conflict resolution, but as a way of keeping you from shooting anyone.)


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