CCW Safe Podcast- Episode 70: Andrew Branca and the Five Elements of Self Defense
CCW Safe Podcast- Episode 70: Andrew Branca and the Five Elements of Self Defense
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CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by CCW Safe National Trial Counsel Don West and Attorney Andrew Branca from Lawofselfdefense.com to discuss Andrew’s free book 5 Elements of Self Defense. They also touch on the ongoing Arbery trial in Georgia.
Rob High: Welcome to the CCW Safe Podcast. I’m Rob High with my co-host Phil Naaman. Today we’ve got two great, great guests with us. You guys are familiar with Don West, our National Trial Counsel at CCW Safe.
Don West: Hi, everybody.
Rob: Andrew Branca is joining us. Andrew is from Law of Self Defense. You guys know him as a courtroom guy, analyst guy covering these cases. Today we are going to retouch something we’ve addressed previously, but we’ve got so many new members and it’s always good stuff to refresh over anyway, and it’s the five elements of self-defense law. I’m going to stay out of the way and let Andrew and Don go, and we will chip in when we have questions.
Phil Naaman: You know before we do that, maybe we should let people know how to get ahold of Andrew Branca or Don if they need to. Don obviously is through CCW Safe, but Andrew, what’s your website?
Andrew Branca: Probably the best way for people to reach out to me is actually to simultaneously get a free copy of our book, The Law of Self Defense. They can get firstname.lastname@example.org/freebook. It’s an actual physical book. We do ask that people pay the shipping to get the book to them, but the $25 cost of the book we eat and we just try to get the word out so people understand what the actual law of self-defense is better able to make well informed, confident, more decisive decisions in self-defense.
Phil: That’s a great service that you do. Thank you very much.
Rob: Andrew, why don’t you start us, please?
Andrew: Well, I’m not sure how familiar everybody is with the Ahmaud Arbery case, and of course, how people perceive it is largely going to be a function of what they’ve been exposed to in the media. Sometimes the media portrays things accurately. Sometimes it’s propaganda. Sometimes we just don’t really know what the truth is in many of these cases. Just as background, Ahmaud Arbery was running through a neighborhood in Georgia. He was perceived by some of the local residents as being a burglary suspect of the community.
There was a home under construction in the neighborhood that had been repeatedly unlawfully entered, property had been stolen from it, thousands of dollars worth of property. The intruder had been caught on video and sometimes eye-witnessed and it appeared to be someone who looked a lot like Ahmaud Arbery. When these neighbors saw Ahmaud running through the neighborhood, they perceived him as a felony burglar in flight from the scene, pursued him in their pickup truck while armed. A confrontation ensued and Ahmaud Arbery ended up getting killed in that confrontation.
Those three men were involved in their pursuit, one of whom did the infamous cell phone video of it, they’re now facing charges of felony murder, four counts of that, I believe, a couple of counts of aggravated assault, unlawful imprisonment, and attempted criminal action, which is really attempted unlawful imprisonment as well. They’re basically looking at the rest of their lives in prison if they’re convicted of these charges.
The opposing narratives in the case are basically on one side, that there was a young black man just recreationally jogging through a neighborhood when he was pursued by these three racist white guys who murdered him for being Black. The other narrative is these three men were upstanding members of their community. Some former law enforcement, former Coast Guard. They reasonably perceived a felony burglar in flight from their neighborhood. They decided to do a citizen’s arrest under Georgia law. In the course of that citizen’s arrest, they will say they were attacked by Ahmaud Arbery and it was during that attack, defending themselves from that attack that a and that up getting shot with a shotgun and killed as a result.
The first thing I’d like to say, by the way, is it should go without saying but sometimes this is overlooked when people get heated about these things, it’s a tragedy that Ahmaud Arbery is dead. I’m sure everyone would wish that was not the case, this had gone a different way. It’s not a good thing that he died. I just want to clear to everybody upfront, that’s certainly my position. I’m sure it’s all our positions. This is terrible. It’s terrible for his family. By the way, it’s no picnic either for these defendants and their family. This is a disaster for everybody involved.
That said my expertise is the legal issues. It should also be said that we almost never really know what’s in people’s minds, what’s in their hearts. Was there a racist intent here? We can’t know these things but in a court of law, we have to go with what the evidence actually is and reasonable inferences we can make from that evidence and apply that within the context of the applicable law that governs the situation.
The laws here would be things like Georgia’s then-existing citizen’s arrest law which was– and by the way, I also feel obliged to say please folks, don’t go making citizen’s arrests. I just want to discourage everybody from doing that. There’s no question on my mind that this pursuit, this attempt to make a citizen’s arrest, this was incredibly imprudent behavior. These were poor decisions. There’s other things that could have been done. Having said that, that doesn’t mean those imprudent decisions were crimes. It doesn’t mean the consequences were criminal for these defendants.
I don’t think anyone should be making a citizen’s arrest unless, you know, go to the police academy, get a badge, become a cop if you want to be arresting people, that’s fine but it has to be said that Georgia’s citizen’s arrest statute that was in effect at the time was unbelievably broad. It was very old and that’s part of the problem here I think. It was co-defined in the 1860s, a time when there were not a lot of formal professional police departments. The citizenry in much of the country was basically the law enforcement. That’s how the statute is framed.
It is giving individuals the private right to make an arrest when they reasonably perceived a felony or somebody in flight from a felony. That’s the law under which these men need to be judged. The difficulty of course is a law that seemed reasonable in 1865 seems less reasonable in 2020 or 2021. In fact, that’s why Georgia has since repealed that citizen’s arrest law.
In fact, what the men were doing under the law at the time may well have been perfectly lawful. If the pursuit was lawful and the stop was lawful, and that follows that the citizen’s arrest would have been lawful, then their use of force is best-characterized as self-defense when they were charged by Arbery. I apologize. Obviously, I talked a great deal, so I should give someone else an opportunity.
Phil: [laughs] I enjoyed it. Hey, keep on going.
Phil: Now, on this particular case, you said that they had videos. There’s a video of these gentlemen charging the pursuers?
Andrew: Oh, that’s for certain. There’s no question about that. The culmination of the fight has the pickup truck with the father and son, Travis McMichael [crosstalk] and Greg McMichael. They’re in the forward vehicle. This is being recorded by the third gentleman in a separate rear vehicle from his cell phone camera. The two men who were most engaged in the fight were Travis McMichael and Greg McMichael. At the time of the culminating event, they were actually stopped. Their pickup truck was stopped in the street. Travis McMichael was standing beside the pickup truck outside of the driver’s side door. The father was in the bed of the pickup truck, but they weren’t closing on anybody. They were in a static position. It was Ahmaud Arbery who was running directly at them in frankly, what I can only characterize as a charging situation.
There’s 360 degrees you can run. He was running directly at Travis McMichael standing outside the truck. Then as he got closer, Ahmaud Arbery veered around the right side of the truck, got to the front edge of the far edge of the truck, cut sharply to the left and charged and came to grips, and started punching Travis McMichael in the head. That moment of aggression was clearly on the part of Ahmaud Arbery. The difficulty comes in is that assumes that the stop, the pursuit was lawful in the context of lawful self-defense. That there was good motive for these men being out there in the street in the truck armed in the first place.
If that’s not true, if you don’t believe, for example, that they had a reasonable belief that he was a felon in flight from a burglary, well, then you could argue that, in fact, their conduct was an act of aggression against which Ahmaud Arbery was attempting to defend himself. That whole context of that citizen’s arrest law is going to be really, really pivotal.
Phil: Did Mr. Arbery have any prior encounters with law enforcement?
Andrew: Oh, he had a number of them. Now, whether those will be relevant for this trial is a different question entirely, but yes. Basically, he was a known thief in the community. He’d been felony convictions for theft for stealing a television out of a Walmart. The local convenience store owners knew him. They called him the jogger because he would pretend to be jogging by the store and then dash in, grab some stuff and dash back out again. When pursued by police, he would routinely when caught say, “Well, I was just running through the neighborhood.” This was a common excuse he would use.
He also had a felony conviction for gun possession. He brought a gun into a school. He was on probation for that. A five-year sentence served on probation when he ended up getting killed on February 23rd, 2020. He had plenty of interactions with the law and there’s a lot of evidence that he was psychiatrically unstable and tended towards violence. His own mother had a confrontation with him where she had to call police because he took her car keys and wouldn’t return her car keys. She didn’t know what else to do. She calls police and she tells the police, “Hey, listen, be careful because if you actually try to arrest him, he’s likely to become violent.”
These are all characteristics that anybody who looks at the evidence would know. That doesn’t mean the jury will ever hear any of that because it may well not be legally relevant to the criminal charges in this case. For example, the McMichaels, the defendants in this case, they wouldn’t have known anything about Arbery’s psychiatric history. They may not have known anything about his criminal background.
It’s a little awkward because one of the McMichaels, the father had worked for a local prosecutor’s office and had been part of the investigation into Arbery for the gun felony, the bringing the gun into the school property crime but it’s not– He knew Arbery in that context in one sense, but we don’t believe that he knew it was that Arbery he was chasing down the street.
Phil: I understand that part, but wouldn’t it have played more to, of course, we can’t ask him, Arbery’s mindset if we already know that he’s been multiple-time arrested, he’s got felony convictions, he’s on probation. If he gets away from these guys, he’s free, if not, he’s going to jail for a long time. Wouldn’t that give him a motive to turn and fight?
Andrew: Well, maybe, and that would be an argument for trying to get some of this evidence admissible in court. There’s really two bases on which it could be admissible. We’re talking about things like Arbery’s state of mind and how he tends to conduct himself and so forth. One would be if the defendants knew him and knew of that character, and therefore, that played a role in their decision-making in the use of force.
For example, if they knew he had a tendency to violence, well that would be relevant because it goes to their state of mind. It would appear they didn’t know any of that at the time. It wouldn’t be admissible for purposes of the defendant’s state of mind, the reasonableness of their perceptions of a threat, for example, or of a felon in flight from a burglary. The other way it might be admissible is not for the defendant’s state of mind, but for Arbery’s state of mind. In other words, what would motivate him to charge a man in open possession of a shotgun?
I think there’s a good argument to be made there for the evidence to be admissible for that limited purpose. As a general rule, a lot of this evidence would be labeled as character evidence. You can’t introduce character evidence simply to show a propensity for someone to do something in court. There has to be a different rationale. There are rationales that exist here, rationales that go to motive and things like that, but so far, the judge is not a lot.
The psychiatric evidence appears to be completely out because Georgia has a blanket exclusion in admissibility for psychiatric evidence. There’s a lot of other evidence that’s been put forward, that the parties have argued back and forth whether or not it should be admissible and the judge has yet to make a decision. Now we’re on our fourth day of jury selection, and frankly, we don’t know yet what evidence is going to be permitted to be argued in court, which is a little awkward because that frames what legal arguments you plan to make and that framing would largely guide the kinds of questions you’d be asking during jury selection. Frankly to me, that part of it seems like a bit of a mess. These questions should have been answered long before we got to the jury selection process.
Rob: Hey, Andrew.
Andrew: Yes, Rob.
Rob: We’re going to take a break here in just a minute, but when we jump back in, let’s look at how we would apply these five elements of self-defense if we were handling this case. We can look at that, see how these things would apply, the things we were looking to get in. I’d also like to talk a little bit because you keep talking, we’re still in jury selection, let’s touch just a little bit on how important that step is in these proceedings. Jury selection is enormous. It can make a make or break a case. We’ve all seen that both ways. Honestly, for our system to continue to work and be the best system in the world, we still need fair impartial jurors. Let’s take a quick minute and we’ll be right back with you.
Phil: Before we jump-off, Andrew, how do they get your book again?
Phil: Thank you very much.
Andrew: Sure thing.
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Rob: Welcome back to the CCW Safe Podcast. Again, I’m Rob High with Phil Naaman and we’ve got our special guest today, Andrew Branca from the Law of Self Defense and Chief Trial Counsel for CCW Safe, Don West. Andrew, as we discussed going out, let’s go back into this case a little bit and see how these five elements of self-defense would apply to this case.
Andrew: Sure, so for folks who don’t know, here at Law of Self Defense, we basically define the legal defense of self-defense as consisting of up to five elements. Sometimes all those five elements don’t apply and they wouldn’t in Georgia, but I’ll list the five elements and then if you don’t mind, I’ll tell people where they can get a free infographic that lists these five elements so they can just have this free PDF. The five elements are innocence, imminence, proportionality, avoidance, and reasonableness. They can get that infographic at lawofselfdefense.com/elements. It doesn’t cost a penny folks, and if you don’t understand these five elements, you can’t really understand self-defense law. I would urge you to download that infographic at lawofselfdefense.com/elements.
The way those five elements work is each of them is essentially a required component of a claim of self-defense, and to defeat your claim of self-defense, the prosecution has to defeat one of those required elements beyond a reasonable doubt, but if the prosecution can do that, then self-defense it’s rather like an old school light switch, it’s either on or off.
If any one of the required elements is disproven beyond a reasonable doubt in the judgment of the jury, well then, your claim of self-defense isn’t just diminished, it’s gone, it’s obliterated, which is a little awkward because an inherent part of claiming self-defense in the first place is that you committed the underlying physical act. You’re conceding that, you’re not saying it wasn’t me who fired the shot. I was someplace else. I have an alibi. You’re saying the opposite of that. You’re saying it was me. I shot that guy, but I had the legal justification of self-defense.
Well, if the prosecution can obliterate your legal defense of self-defense, all that’s left to that statement is that I shot that guy, period, and that’s largely a confession to the underlying crime. Very important that you have a robust base of those five elements to make sure that your claim of self-defense is difficult to effectively attack and destroy.
One of the catchphrases we have here at Law of Self Defense is if you carry gun so you have to kill, then know the law so you’re hard to convict, and that doesn’t mean legal tricks or fooling the criminal justice system, it means know what the law actually is, know what these five elements actually are so you can constrain your use of force within those boundaries. If you do that, you’re genuinely hard to convict but if you mess up and make it easy for the prosecution to destroy one of those five elements, well then you’ve basically handed him a walk away conviction. You’ve made his day easy.
The way those elements work is again, they’re innocence, imminence, proportionality, avoidance, and reasonableness. Innocence, meaning you can’t have been the initial aggressor in the fight. The initial aggressor can’t claim self-defense as a justification for his use of force. Imminence, the threat you’re defending yourself against has to either be in progress, you’re actually being attacked or immediately about to occur. It can’t be some past threat. It can’t be some speculative future threat that may never happen, and it has to be an imminent threat.
Proportionality has to do with the degree of force involved. In short, you could only use deadly force to defend yourself against a deadly force attack. Avoidance has to do with whether or not you’re in one of the 11 states, we’re down to 11 now that imposes a legal duty to retreat. Georgia does not, so for purposes of this discussion, the element of avoidance doesn’t apply in an otherwise lawful case of self-defense.
Then we have that fifth element of reasonableness, and this is an amorphous umbrella element that sits over all the others. Everything that you perceive, that you decide, that you do in self-defense has to be the perceptions, decisions, the actions of a hypothetical reasonable and prudent person. You have to have subjectively believed it was necessary to act in self-defense as you did, and a hypothetical reasonable person in the same circumstances would also have believed it was necessary to act that way. A genuine but irrational belief in the need to act in self-defense wouldn’t be sufficient. It has to be a genuine and reasonable belief in the need to act in self-defense.
Any time you want to understand whether or not somebody’s use of force was likely lawful self-defense, you can apply that five-element framework and it applies in all 50 states folks. There’s very little– Self-defense laws, about 80% the same across the states. Of course, the variance matters. That can make the difference between a guilty or not guilty verdict at the end. The overall framework is fairly consistent and that’s a reflection of how old this law is.
We in America inherited all this from old English Common Law. They had a well-established framework back then and all the states essentially apply the same pattern, which is why this five elements framework works so generally across the country.
Ron: Reasonableness is that word that everybody wants to get hung up on but there are so many things that apply in that.
Andrew: It’s very dangerous. If any of the audience looks at your state self-defense statutes, they will see reasonableness or some variant of reasonableness everywhere across those self-defense statutes. Sometimes multiple times in a single sentence in a self-defense statute. That reflects the weight and importance that the law puts on that particular element.
Unfortunately, it’s always a judgment call and it’s a judgment call that’s not made by you. It doesn’t matter whether you thought what you did was reasonable, it matters whether other people in hindsight think it was reasonable, whether the police, the prosecutor, the judge, particularly the jury decide it was reasonable and you don’t have any control over how they’re going to perceive things.
I always caution people that the cases I work on, we often tell the clients that, listen, if we put you in front of a jury, there’s something like a 10% chance you get convicted no matter how innocent you are. That’s just part of the noise in the system. A large part of that noise is ambiguity around things like reasonable. Maybe you genuinely thought it was reasonable, maybe I would think it was reasonable but there’s always a risk the jury won’t and it’s their decision that controls your fate.
I always caution people. Listen, before you get in that physical confrontation, keep in mind, the moment you do, you’ve lost control of your fate. Other people now control it, whether or not you’re going to spend the rest of your life in a cage with unpleasant people, that’s not in your hands anymore, that’s another people’s hands. Those are the stakes. If you’re going to get into a fight, make sure what you’re fighting for is worth that kind of risk.
Rob: Yes. Don, what are some of those factors that would kick into reasonable things? Would it be like a great age disparity between an attacker and a victim? Would it be availability of weapons or things like that? What are some of those things that we would look at trying to mount a defense in something like this?
Don: You know some of the things you mentioned just now, Rob, will overlap into other elements as well. I like to think of reasonableness as Andrew described it, as a sort of umbrella which really touches on every aspect or every element as he’s defined it, and it’s almost, as he said as well, it’s in the eye of the beholder. It has to be in your mind, you have to be acting reasonably, that’s your own subjective view of what you’re doing, and as Andrew also mentioned, there’s this notion more objective, and that is the jury has to decide notwithstanding that you think you acted reasonably. Yes, from their perspective, you acted reasonably as well.
There’s a commonly used phrase in the law, the totality of the circumstances and sometimes that’s really hard to pinpoint, what is and what isn’t going to make the difference but within the overall context of the case, the totality of all of the circumstances that touch on each of these five elements, there has to be this, I would suggest an abiding sense of reasonableness. I don’t know how more sharply you can define that. You could pick out examples that a jury found to be reasonable or unreasonable, and even getting inside the mind of a jury is really difficult.
I can tell you in watching that trial a couple of years ago in Texas, where the police officer had worked an extended day, came home to her apartment. She’d only lived in the building for a couple of months. Amber Guyger is her name, and she went through the unlocked door of someone else’s apartment and saw someone inside there, believed it was an intruder of some sort, and shortly thereafter, shot and killed him. When the prosecutor argued in favor of her guilt, it was this notion of reasonableness.
Was it reasonable that she didn’t see a different color doormat? Was it reasonable that the layout of the furniture was clearly different over and over and over again, including whether what she did shortly after the shots were fired, was that reasonable to suggest this was someone who really believed that they were in danger or that they were defending their own home? What is the, Andrew, you would know this, was it Stevens who tried to define pornography for the United States Supreme Court? Who said, I can’t define it, but I know it when I see it kind of thing.
Andrew: That’s right.
Don: In some ways, I think reasonableness, I should have asked you, Phil, you may be the pornography expert.
Phil: Oh, woe.
Don: I don’t know on this panel, but Andrew, am I close on this?
Andrew: Guyger was a really interesting case because it really seemed to me that she subjectively genuinely believed she had encountered an intruder in her own apartment, and by the way, in this apartment complex where this happened, something like 30% of the residents had either walked into the wrong apartment or had other people walk into their apartment. That’s how identical these apartments looked. It’s not hard to imagine that someone could be an innocent intruder into the wrong apartment without intending any particular malice, believe they were going into their own place, and suddenly you see in intruder, you’re a cop so you’re armed with the gun. The gun comes out, you fire the shot.
I don’t think there’s any question that she committed the killing with malice, aforethought, for example. I think she genuinely thought she was facing an intruder.
The subjective part of reasonableness I think was there, it’s the objective part. Would a hypothetical reasonable and prudent person have come to that same perception? If not, well, then she fails that element of reasonableness for self-defense. Normally, what happens under that circumstance is what would’ve been a murder conviction gets mitigated to a manslaughter conviction in form of what they call imperfect self-defense, and I believe that Guyger was my recollection, and I didn’t prepare my mind with this case before coming on with you folks, but my recollection is she was actually convicted of murder, but she was sentenced to something that was much more akin to a manslaughter sentence than a murder sentence.
Don: You know that’s interesting, Andrew, because, in Texas, it’s the jury that imposes the sentence. The jury that convicted her of murder turned around and actually gave her a 10-year sentence, which is much more commensurate with a manslaughter conviction. Yes, exactly right.
Andrew: Maybe she serves, I don’t know what the rules for this in Texas, but a third or 40% or whatever they do if there’s good behavior, which I think you could expect in her circumstance. She’ll probably do three or four years and then she’ll be out. She’ll be a convicted felon obviously, for the rest of her life, but that’s a lot– It sounds horrible, three or four years in jail and I’m sure it is horrible but it’s a lot better than life in prison without possibility of early release which is what she could have been looking at.
Don: We’ve been talking about the Arbery case, of course, to use as the springboard for some of these other discussions but everyone is being viewed, everyone in the case is being through this reasonableness filter. People will be looking at Arbery through this reasonableness feature. Does it make sense that he was actually jogging? Was he a burglar? Was he just a trespasser? If he wasn’t a burglar, meaning the intent to commit a crime within the structure itself, if you were a mere trespasser, as I understand it, there was no provision for a citizen’s arrest under Georgia law if it were merely a misdemeanor trespass.
I’m not clear on that but pretty soon, it then shifts to what were these guys doing that were armed? What were they trying to do? What did they say and what did Arbery know? Did he know they had guns before he went around the truck and confronted one of them? What was said? Was Arbery saying, “Oh my goodness, these guys are about to kill me, I better try to save myself.?” Then who’s acting in self-defense and who isn’t. It’s dynamic and flowing and going to be really hard to sort out I think.
Andrew: It’s like getting into a third-party confrontation coming to the rescue of some stranger, for example. You don’t really know what’s going on. It can be quite possible in self-defense cases for two parties to be using force against each other and they’re both doing it lawfully. Because the use of force, the merits of it, the legal merits are largely judged from their perspective. For example, it’s not unusual for plainclothes police officers who go to a rambunctious scene like an active shooter scene, to shoot each other. The two police officers shoot each other because they reasonably perceive each other as potentially being the armed aggressor that they’re rushing there to stop.
Both of them firing rounds at each other are actually doing so lawfully if their perception of the other as an unlawful deadly force threat is a reasonable perception under the circumstances and unfortunately, sometimes one of those officers ends up getting killed. As tragic as it is, it’s still lawful. There’s a phrase for those cases, awful but lawful.
Don: Andrew, maybe it’ll be best served in another segment but there’s something I would love to hear you talk about and that is whether you could at that time in Georgia, or anywhere now in the United States, use deadly force to effect a citizen’s arrest.
Andrew: To my knowledge, you can’t use deadly force to affect the citizen’s arrest. In other words, threaten someone with deadly force to compel them to comply with your arrest. I don’t believe that’s lawful anywhere. Where things get more ambiguous is where you’re lawfully permitted to be armed while making a citizen’s arrest and then you get attacked by the person you’re trying to arrest. Then you’re using deadly force not to facilitate the arrest but to defend yourself from that imminent unlawful attack. I believe that’s what the defense will argue here, that these men were armed with guns not to facilitate their arrest but to be able to defend themselves.
One of the things that had occurred to one of the defendants, Travis McMichael, just a couple weeks before was he had a gun stolen out of his vehicle in front of his home. He may have had a concern that this person they’re chasing maybe they were the same thief who took the gun from his car and therefore was armed with a firearm. We’re going to bring guns to make sure we’re able to defend ourselves against that threat, but it sure looks like you’re arming yourself to make an arrest. That does look great.
Don: You would agree would you not that had Arbery not done something which appears to have been an attack, had he just turned and kept running, that no one there could shoot him because he was trying to get away from their citizen’s arrest.
Andrew: Correct. Absolutely. No question about that. That’s the nub of the whole issue around that use of deadly defensive force was you can see on the video that Arbery is charging at them, fighting Travis McMichael for his shotgun, punching him in the head, struggling with the weapon. They both got their hands. People say Arbery was unarmed and I would argue, well, he wasn’t unarmed when he was shot, he had a shotgun. They both had the shotgun. They were physically fighting over control of the weapon so they were each armed with the identical shotgun. That’s not a great place to be in and it didn’t work out great for Arbery, or for that matter, for Travis McMichael.
Ron: Can you give our listeners your link to your book again? There’s so much important information there. I’d like to make sure they have an opportunity to get that again.
Andrew: Sure. It’s lawofselfdefense.com/freebook. One word, freebook.