Andrew Branca – Restaurant Knife Attack

A concealed carrier stops a knife-wielding attacker inside an LA restaurant and saves lives – but did the same act that justified the shooting also break the law? Attorney Andrew Branca breaks down why a lawful self-defense shooting and an unlawful concealed carry violation can happen in the very same moment. It’s a sobering reminder that knowing the law where you carry matters as much as knowing how to use your firearm.

 

Transcript:

00:00 Hey folks, attorney Andrew Branca here from lawofselfdefense.com back again at the kind invitation of CCW Safe. And I’d like to share with you a story about a shooting out in Los Angeles that occurred a short while ago, L.A. county, outside inside a Mexican restaurant.

Apparently a crazy person was outside the restaurant with a knife in hand, cuts themselves, then storms into the restaurant and starts threatening patrons and servers with the knife. 

There’s an off duty police officer in the restaurant, doesn’t intervene at all. There’s also in the restaurant someone with a valid California concealed carry permit. He gets out of his seat, he confronts the man with the knife, orders him to drop the knife, and the man charges at him with the knife.

The concealed carrier shoots with fatal effect. The man with the knife would be pronounced dead at the scene. Now by all accounts, the shooting itself appears to be perfectly lawful defense of self and indeed defense of others. 

01:12

The concealed carrier was dealing with an unlawful aggressor, an eminent deadly force threat, and used deadly defensive force to neutralize that threat. 

Of course a prosecutor could put that use of deadly defensive force to the test, could charge this man, could get an indictment, could take him to trial, could put the whole matter in front of a jury at which there’s always a greater than zero possibility of getting convicted. 

And on the facts of this case it strikes me as a very robust justified use of deadly force in defense of self and others. But there’s another issue here, as there often can be in these self defense cases, especially when a permit is involved under California law, it’s not lawful to be carrying your gun on an otherwise lawful permit if you’re in an establishment that serves alcohol and this Mexican restaurant serves alcohol.

02:15

Now there’s no indication that this concealed carrier consumed alcohol. That would actually be a violation of his carry privileges under a different California statute. But even if he didn’t consume alcohol, merely carrying under his license in an establishment that served alcohol at all violates the terms of his license, therefore making his carrying of the pistol unlawful under those circumstances. 

Now of course this man probably knew whether or not he was supposed to be carrying in that restaurant that serves alcohol, may have known that he was doing so in violation of his permit and in violation of California law, and made the decision to do it anyway. 

That said, the complication we get here is that the unlawful carrying of the pistol, carrying the pistol in violation of the state conditions of the concealed carry permit almost certainly does not impact the self defense justification for the shooting itself.

03:15

If we assume for purposes of discussion that the shooting was lawful self defense under California law. And by the way, if you were wondering, California is not only a stand your ground state, so this concealed carrier would have had no legal duty to attempt to retreat. 

California is actually one of the most robust standing ground states in the country. The relevant California jury instruction Calim. 505 actually instructs the jury not only does the defender not have any duty to retreat, the defender has the privilege to pursue his attacker if necessary for safety. 

That’s a pretty robust stand your ground law. Interestingly, you won’t find it in statute. California doesn’t have a stand your ground statute. But the other source of law is court decisions case law. 

04:03

And stand your ground has been California case law since the late 1800s. In any case, the violation of the carry conditions almost certainly does not have an impact on the justification of self defense. 

If we presume the self defense shooting was legally justified, that doesn’t change because the person used the gun they were not supposed to have in the restaurant under the terms of their permit, the legally justified shooting remains legally justified. 

But we have the permit violation. And it’s quite possible to have used force in perfectly lawful self defense and still be on the legal hook for any other laws that you violated. 

You may be thinking, well, if the legal justification of self defense justifies taking a human life, which is what happened here, and probably was legally justified, how could it not justify a mere concealed carry permit regulation? 

05:06

The reason it doesn’t is because when the fatal shot was fired by the concealed carrier, he was defending himself from an imminent unlawful deadly force threat. When he walked into the restaurant with the gun unlawfully, he was not defending himself against anything. 

You may also be wondering, does this kind of law put any of the responsibility on the state? Or imagine it was a restaurant where he could have carried but for the fact that the restaurant was posted. 

That’s not California law, but some states have that kind of provision. And he merely violated the conditions of the posting the no gun sign on the front door. Does the restaurant then assume responsibility for his safety? 

After all, the restaurant said, you can’t bring with you the gun you would normally have on your person for self protection. And then when you don’t have the gun and the same lunatic with a knife comes in and stabs you. 

06:03

Should the restaurant be responsible or any other store that posts no guns? The answer is no, it doesn’t work that way. Because if you walk up to a restaurant or a store and you see it has A no guns policy. 

And you decide to abide by that policy, you leave your gun at home, you leave it in the car, whatever. You’ve made the decision to do that and you have to accept that responsibility. You’ve made the decision that even you believe you don’t really need a gun on that property because you chose to enter the property without the gun, and therefore you assume responsibility for your own safety. 

If you really thought it was dangerous enough to need a gun, the legal reasoning goes, you wouldn’t have gone in. You would have said, I’m not going in without my gun, and therefore they won’t let me have my gun, I can’t bring it in lawfully, then I won’t enter at all. 

That was another option you had. So in this particular case, out of California, LA county, the man who shot and killed the knife wielding aggressor is probably in the clear for the shooting and killing for the taking of another human life, but may well be facing criminal liability for having violated the California concealed carry statute by bringing his gun into a restaurant that serves alcohol. 

07:25

So something to keep in mind, self defense covers you for your use of force. If you do it right, it doesn’t cover you for any other incidental violations of the law you may have committed. Now, is there a way that self defense could have covered having the gun in the restaurant or any other legal justification? 

And the answer is yes. Imagine that this concealed carrier was not in the restaurant. Imagine he was outside the restaurant, just walking along the sidewalk, and the crazy man with the knife runs into the restaurant and starts threatening people. 

08:02

The concealed carrier can see this happening through the windows of the restaurant. So he rushes into the restaurant, pulls his gun, points it at the aggressor with the knife, tells him to drop the knife, and when the aggressor charges him with the blade, he shoots and kills him in lawful self defense. In that case, we have exactly the same scenario with the actual use of force. 

The legal defense of necessity, sometimes called the legal defense of, lesser evils or lesser harms or choice of evils. It goes by different names in different states, but every state has some version of this legal defense. And essentially how the legal defense works is you commit something that’s a criminal offense, and then you say, yes, I did that thing, I broke that criminal statute. 

But the harm I caused in breaking the criminal statute is much less than the harm that was avoided because I broke the criminal statute. The classic example is imagine you’re walking along the sidewalk on a very hot Summer day, and you walk by a car. 

09:06

The windows are up, the doors are locked. It’s 100 degrees outside. It’s probably hotter than that in the car. And you see there’s a baby that’s been left behind strapped in the car seat. Any reasonable person observing this would believe that the baby was likely to die in that car unless it was removed from the vehicle. 

You call out to see if the owner’s around. Nobody responds. So, in desperation, you break the car window, you unlock the door, you retrieve the baby from the car, save the baby’s life. Now, did you break a criminal statute by destroying the car window? 

Yes, of course. It’s destruction of property. It’s criminal mischief. you’re not allowed to simply break people’s car windows. That’s obviously against the law. But if you were charged with an offense or having broken the car window, you’re legal defense would be the defense of necessity. 

Yes, I broke the car window. Yes, that’s normally a criminal act. But the harm of breaking the car window was much less than the harm that would have resulted if I didn’t break the car window. And that would have been the baby’s death. 

10:09

In our scenario, where the concealed carrier is outside the restaurant, he sees the knife wielder threatening patrons and servers inside the restaurant. He rushes inside, gun on his person, to confront the knife wielder. 

If he’s charged with unlawfully having a gun inside the restaurant, he would argue the doctrine of necessity. Yes, California has a law that prohibits me, even with my concealed carry permit, from carrying that gun into a restaurant that serves alcohol. 

But the harm I caused by breaking that law is much less than the harm that would have resulted had I simply stayed outside with the gun and not been in a position to neutralize that deadly force threat against patrons and servers. 

But note the difference there. In the second scenario, the doctrine of necessity scenario, the concealed carry regulation was not violated until the threat was observed. 

11:09 That’s different than if he violates the concealed carry statute in the absence of the threat, goes into the restaurant beforehand, and is already sitting in there before the knife wielder shows up.  All right, folks, that’s what I wanted to share with you today.

Something to think about in terms of self defense, concealed carry regulations, the legal defense and justification of self defense, and the legal defense of necessity. Thanks again to CCW Safe for having me here. 

Until we meet up again, I remain attorney Andrew Branca for LawOfSelfDefense.com.