Andrew Branca – Ambiguity

A Michigan homeowner confronts a man breaking into his car in the middle of the night. He says the man pulled a knife, and he ended up stabbing the burglar with it. Now the homeowner is charged with murder.

Attorney Andrew Branca explains how ambiguity can turn a lawful act of self-defense into a criminal case. Police, prosecutors and juries weren’t there, so they can only go by what the evidence seems to show. The verdict can rest on how your actions are seen as much as on what actually happened.

 

Transcript:

0:01

  Hey folks, Attorney Andrew Branca from lawofselfdefense.com, back again at the kind invitation of CCW Safe, and today I’d like to talk to you about ambiguity and the risks that ambiguity present in a claim of self-defense.

0:17

This was prompted by a news report that just came out from Portage, Michigan, where a homeowner’s been charged with murder after stopping an attempted car break-in in his driveway.  Apparently, it was oh-dark-thirty. Just a couple days ago, the homeowner heard noises from his driveway, went out, and there was a dude trying to steal his car.  The homeowner tried to stop him. The homeowner says the dude pulled a knife. I got a hold of it, and I stabbed him with it, and called the police.  The police arrived. The homeowner’s been placed under arrest on a charge of murder. 

0:51

Now, we don’t really know what happened here.  Of course, the law in Michigan says you can use force to defend your property, personal property, like an unoccupied car, but only non-deadly force. What happens if you engage in the use of non-deadly force and then things escalate, as the homeowner describes here?  And what was a defensive property scenario, where only non-deadly force would be permitted, becomes a deadly force scenario, self-defense deadly force, and you manage to win that physical fight.  

1:22

For defense of your car, only non-deadly force would be lawful, but you ended up using deadly force. And now the question is, will your narrative, your story, that you only intended to use non-deadly force in defense of your personal property, you only went to deadly force when things escalated through no fault of your own to a deadly force attack on your person, therefore your use of deadly force is lawful, will that be believed?  

1:49

And the risk here is one of ambiguity. Now ambiguity. Ambiguity and self-defense scenarios can arise in a couple of different contexts.  One is your sense of ambiguity, and the other is other people’s sense of ambiguity, the sense of ambiguity on the part of people who are tasked with evaluating the lawfulness of your use of force, whether that be police or prosecutors, a judge, a jury, the public, your family.  Now, the first type of ambiguity has to do with your state of mind. You’re perceiving some event that’s beginning to scare you, beginning to appear as if it might be a threat.  

2:28

Maybe you’re walking through a parking garage late at night, and you hear footsteps behind you, 20, 30 feet behind you, and there’s some sketchy-looking character.  It appears like he might be following you. There’s hardly anybody else around. It’s late. Most of the cars are gone.  Maybe this guy has just happened to park his car where your car happens to be parked. But maybe he’s following you for a nefarious purpose.  You don’t know for certain.

2:56

There’s ambiguity. Now, in that context, there may be ways to strip away the ambiguity.  You could turn and challenge that person, shout at them, get away from me. There’s nothing criminal about you doing that.  And by doing that, you’re compelling that person to either stop doing what’s scaring you or to conduct himself in a manner consistent with a threat.  

3:17

If he’s an innocent person who just happens to be parked near you, and you start screaming at him to stay back, any normal person’s going to go, whoa, this person’s crazy.  I’m not getting near them. Go on your way, good sir. And the following, or the apparent following, stops. 

3:33

But if they’re following you for a nefarious purpose, and then they continue to close with you after you’ve screamed at them to get back, is that conduct that’s consistent with a threat?  Evidence to which you can apply your powers of reason? To develop a reasonable perception that you may need to defend yourself?  Use force against that person and then justify that use of force as self-defense? Yes. Yes. 

3:56

So, in that context, you’re using verbal commands to strip away the ambiguity, to clarify events, to compel that person to either stop doing what’s scaring you or to continue to conduct themselves in a manner that would be consistent with an aggressor against whom your defensive force would be reasonable and lawful.  

4:15

But ambiguity comes from the other direction too. Again, from the people who have to evaluate your use of force.  It’s important to remember that no one who’s evaluating the lawfulness of your use of force actually knows what happened.  They weren’t there. They weren’t physically present when you were attacked. There’s no way anyone can know with absolute certainty, at a level of absolute truth, whether your use of force was lawful or not.  

4:42

All anybody can do is look at the evidence and try to make reasonable inferences from the evidence. And that may have a lot of connection to the truth.  And it may have little connection to the truth. But they’ll be guided by the inferences that they make. 

4:58

In this kind of scenario, where it’s three o’clock in the morning, you wake up, you hear noises from your driveway, you peer out the window, there’s some shadowy figure with an implement appearing to break into your car.  You know the law says you’re allowed to run out there and use non-deadly force. to prevent them from breaking into your car.  Some people might also run out there and use deadly force to try to prevent their car from being taken.  That would be, in most states, including Michigan, unlawful. That would be a crime.

5:28

 And if that person dies as a result of your use of deadly force, it would be murder or at best manslaughter.  So, when the police arrive on the scene and there’s the homeowner with the car apparently broken into and a dead burglar of the car, they have to wonder, what happened here? The homeowner says, I was only using non-deadly force to protect my car, and this guy whipped out a knife.  I managed to seize control of the knife, and I killed him in lawful self-defense. Deadly defensive force to stop that deadly force threat against me.  I had to stab him. He was fighting for control of the knife, too. It was that close. It was me or him.  Sounds lawful. 

6:06

But maybe the police suspect that’s not really what happened. Maybe the police suspect you saw your car being stolen.  You got really pissed. You ran out there with a knife, and you just killed that guy over your car. That would not be lawful. That would be murder or manslaughter. And they don’t know. To them, the situation is ambiguous. They have what you’re telling them about it, but maybe there’s other evidence. And often there is other evidence. 

6:37

Often there’s Ring cameras, often there’s someone who had insomnia and was staring out your window when this happened, someone walking their dog nearby.  Maybe the car robber had a friend waiting for him at the curb in another vehicle, the person who dropped him off.  Maybe that person turns out to be a witness. So, the police approach this scene, they arrest the homeowner, there is, after all, a dead person, and they’ll investigate and they’ll see what happened.  

7:03

But the homeowner, meanwhile, is under arrest on a charge of murder. And if the investigation begins to unfold in a direction where a prosecutor feels, correctly or not, that he can make a compelling argument to a jury that this use of deadly force was not lawful defense of the homeowner, but merely gratuitous deadly force in defense of the car, well, that begins to look like a case he can win at trial.  Again, he doesn’t know with absolute certainty whether the homeowner committed a crime or not. He just has a story.  He now believes he can sell to a jury. And what might have been, in fact, perfectly lawful self-defense ends up with a conviction for murder and a sentence of life in prison without possibility of early release.

7:49

So, we always have to keep in mind that what really matters in our own use of force event or contemplated use of force event is not what actually happened, is not the truth of the event.  What matters is how other people might perceive what happened, what inferences they might make from the available evidence, including whether there might be witnesses who lie, or there might be video that’s misleading.

8:17

So, we always have to keep in our own mind not just what’s actually going on, what I’m actually doing, but how might what’s going on or what I’m doing be perceived by other people, because that in the end is what controls your legal outcome, not the truth of the event. That ambiguity could be enough to put you in prison for the rest of your life.

8:43

So, when you hear that noise from your driveway, the law says you’re allowed to go out there and defend your property.  And I’m not telling you not to. I don’t tell people what to do. But it’s worth keeping in mind the risks you’re incurring, that ambiguity risk, the inferences, correct or not, that others may make about your use of force and the outcomes that can have for you, life-changing outcomes. And ask yourself, I’m legally privileged to go out there and try to stop this, but are the stakes worth the risk?  I can’t make that decision for you. Only you can make it. I can only try to help you make it.  

9:20

Thanks again to CCW Safe for having me here. And until we meet up again, I remain Attorney Andrew Branca for LawofSelf-Defense.com. Stay Safe.