Case Of The Week

US Precision Defense  By   Attorney Andrew Branca   /   March 9, 2020 Hey folks, This week’s  Cases of...

Case Of The Week
Case Of The Week

Case Of The Week

Written by Guest Contributor
in Section Safety And Education

US Precision Defense 

Hey folks,

This week’s Cases of the Week, for the week ending March 6, 2020, includes the five most important and interesting appellate court decisions (case law) on use-of-force cases in the last week out of the following states:

Illinois, Kansas, Louisiana, Michigan, and Pennsylvania

If your state wasn’t in that list, don’t lose interest, you can likely learn a lot from those cases even if your state is not listed, because the general principles of self-defense law are about 80% the same across the 50 states (naturally, the 20% difference matters, too).

At the text version of this content over at the Law of Self Defense website ( for each of these cases we provide a hyperlink to read the full-text of the court decision, which I urge you to do! Reading these kinds of appellate court decisions is how lawyers themselves learn how use-of-force law is likely to be applied to their real-world clients in real-world use-of-force cases. It’s also how the law is likely to be applied to you!

Issues covered in this week’s Cases of the Week include:

  • The vital difference between “Perfect” versus “Imperfect” self-defense
  • Dangers of a defendant’s inconsistent statements to claim of self-defense
  • Impact of stress on statements given immediately after a use-of-force event
  • Application of self-defense law doctrines to non-use-of-force cases
  • The distinct roles of the trial court and the appellate court in assessing issues of fact and law
  • The worthlessness of a narrative of self-defense that is undermined by consciousness of guilt evidence and inconsistent with forensic evidence—in other words, the lack of worth of an evidence-free narrative of self-defense
  • The requirement that a perception of the need to act in self-defense be objectively reasonable—a genuine, good faith, subjective belief in the need to act in self-defense is required but not by itself sufficient to justify the use of force against another.
  • The legal perils of firing a warning shot

We’ll be breaking down, or “briefing,” each of these cases in five major segments, to make them easier to digest and understand:

Facts:  What happened in the use-of-force event.

Law: What use-of-force laws were applied at trial, what legal arguments were presented by the state and the defense, and what were the verdict and sentence at trial.

Analysis:  The basis on which the defendant appealed his conviction, and the appellate court’s analysis of the claimed error.

Outcome:  The appellate court’s conclusion.

Notes/Comments: Additional thoughts I have on the case.

This new format is a bit of an experiment, so I encourage all of you to provide feedback and let me know how you like it.  Better, more value, prefer it this way, on the one hand, or simply too long, too detailed, too time-consuming, on the other.  Let us know!  Thanks!

1. People v. Swain, 2020 IL App (1st) 162515-U (IL Ct. App. 1st 2020)

March 5, 2020

LOSD Summary:

Facts:  The female Defendant stabs her on-again, off-again male boyfriend in the in heart when he rushes toward her during an argument, fatally.  She is charged with first-degree murder.

At the scene the Defendant tells police the stabbing was an accident.  She is charged with first-degree murder.

Law:  The Defendant opts for a bench trial, meaning that the judge takes on the fact-finding role of the jury, and delivers the ultimate verdict.

Various inconsistencies in the Defendant’s various statements and testify lead the trial court to severely question her credibility.  The trial judge acquits her of the first-degree murder charge but finds her guilty of second-degree murder (the label Illinois gives to what most states call manslaughter) on the grounds of imperfect self-defense.

Imperfect self-defense occurs when a defendant had a genuine, good faith subjective belief in the need to use deadly defensive force, but that belief is found to be objectively unreasonable.

In other words, under imperfect self-defense the defendant has only half the element of Reasonableness required for normal or “perfect” self-defense–the defendant was subjectively reasonable, but not objectively reasonable. The effect of imperfect self-defense is to mitigate what would otherwise be a murder conviction to manslaughter.

This Defendant, having been convicted of second-degree murder (again, what most states call manslaughter), is sentenced to 12 years in prison.

Analysis: The Defendant appeals her conviction, in part, on the grounds that the state failed to disprove her claim of self-defense beyond a reasonable doubt.

The standard for review for such a claim is whether any rational finder of fact (usually the jury, in this bench trial the judge) could have concluded as did the trial court that the Defendant’s belief in the need for deadly defensive force was objectively unreasonable, deny the Defendant “perfect” self-defense as a result and thereby taking an outright acquittal off the table, but allow “imperfect” self-defense to yield a conviction for second-degree murder (again, what most states call manslaughter).

In reviewing the case, the court of appeals concludes that given the various inconsistencies of the Defendant’s several statements as well as inconsistency of those statements with other physical evidence, it was not unreasonable for the trial court to conclude that the Defendant’s belief in the need to use deadly defensive force was, even if subjectively reasonable, objectively unreasonable.

Outcome:  The Defendant’s conviction and sentence are affirmed.

Notes/Comments:  An interesting issue in this case, and part of the Defendant’s attempt to explain away her inconsistent statements, was that her initial statements were made under the stress of the use-of-force event, whereas her later statements (and particularly her in-court statements) were made after that stress had gone.  That, the Defendant claimed, ought to explain away her various inconsistencies.

This is a credible argument to make given what we know scientifically about how the brain captures, stores, and recalls information, especially the contrast between how it does so under stress and how it does so after the stress is resolved or under normal circumstances.

As credible as that argument might be, however, that doesn’t mean it’s going to work.  It certainly did not work for this Defendant in this case.

2. State v. Hayes, 2020 Kan. App. LEXIS 17 (KS Ct. App. 2020)

March 6, 2020

LOSD Summary:

Facts: This is actually not a self-defense case at all, but rather a Peeping Tom case.  What’s makes this case interesting for our purposes, however, is that the court applies self-defense law principles in determining the reasonableness of certain actions in this case—in particular, whether the victim in this case had a reasonable expectation of privacy from the Peeping Tom.

The facts in this case are straightforward:  the state claimed that the Defendant surreptitiously filmed the Victim in a state of undress, through a window of the Victim’s bedroom.   The Defendant was charged with criminal breach of privacy.

Law:  The Defendant argued that under the totality of the circumstances, the Victim did not possess a reasonable expectation of privacy, and therefore he could not be convicted of breach of privacy.  In particular, the Defendant pointed to the fact that the Victim had the blinds up in her bedroom.  The Defendant is, in effect, arguing that this is a case of a scantily clad woman who parades herself before a window fully aware that she is visible to the public.

The jury nevertheless convicted the Defendant of criminal breach of privacy.

Analysis:  The Defendant appeals his conviction on several grounds, one of which is a restatement of his claim that the Victim could not have had a reasonable expectation of privacy under the circumstances.

The court of appeals applies several types of analysis to this question of whether the Victim had a reasonable expectation of privacy, including the same 4th Amendment argument that would apply to whether police need a warrant in order to “wiretap” a suspect (a warrant is generally required when the suspect would have a reasonable expectation of privacy, but not when there would be no such expectation).

More interesting for our purposes is that the court of appeals also applies the self-defense law analysis of the element of Reasonableness to this question.  That is, would the Victim in this case have had a subjectively reasonable belief in an expectation of privacy, and if so would that subjective belief also have been objectively reasonable.

If both subjective and objective reasonableness exist, then the Victim here would have a reasonable expectation of privacy, just as a defender would have a reasonable perception of the need to act in self-defense.  This is true even if the expectation of privacy or the perception of the need to act in self-defense is factually mistaken, so long as the mistake is a reasonable mistake.

Outcome:  The court of appeals found that the Victim did, in fact and law, have a reasonable expectation of privacy under the circumstances, and affirmed the Defendant’s conviction.

Notes/Comments:  It’s nice to see courts apply legal doctrines of self-defense law in other contexts, if only because it shows a broadened understanding of and application of those doctrines.

A great weakness of many appellate self-defense cases is that the court misunderstand how to properly apply self-defense law—and this is largely because they have such limited exposure to it and so little experience in applying it.  Anything that addresses both those shortcomings is likely to lead to better reasoned and more legally consistent use-of-force case law.

I have a confession: self-defense law is simple. There, I said it—my expertise is simple.

I know what you’re thinking—sure, maybe self-defense law is simple for a self-defense law scholar and lawyer, who reads legalese like a native language, but what about normal not-crazy people?

In fact, self-defense law is simple for everyone.

That said, there is a catch: You have to be taught self-defense law by someone who understands the subject well enough to effectively translate all the legalese into plain English, to distill that legal knowledge from the theoretical to the actionable.

Find that person and you’re well on your way to understanding the law of self-defense because it's not actually that complicated.

The simple truth is that you don’t have to know 500 legal concepts to really understand self-defense law. Not even 50.

In fact, there are at most 5 elements to any self-defense case (and often not even that many).  That’s it—just 5.  And that’s true in every one of the 50 states, and all US territories.

And it all begins with the first element:


You can’t start the fight.

That’s the first element—you can’t have been the initial aggressor, and then justify your use of force as self-defense. Pretty simple, huh?  What could be more obvious than that, right?  You got this.

Often, however, whether you, in fact, started the confrontation can easily be a fact in dispute. Naturally, you’ll say the other guy was the initial aggressor. But that other guy—or his buddies—could say that you were. That kind of uncertainty is the “messy” part of this “simple” element.

Bottom line, if a prosecutor reviews your case and sees evidence that suggests you might have started the fight, you’ve just made yourself way more likely to be brought to trial on criminal charges, because now you look like a vulnerable target for conviction.

But starting (or appearing as if you started) the fight isn’t the only thing you must avoid, there’s also the second element:


The law allows you to defend yourself from an attack that’s either happening or about to happen very soon, meaning within seconds. It’s not intended to justify vengeance for some past act of violence, nor to “stop” a speculative future attack that you have time to avoid by other means.

You can think of the element of imminence as a window that opens and closes. Before the window of imminence is open—before the threat is actually occurring or imminently about to occur—you can’t use defensive force. After the window of imminence has closed —after the threat is over—you again cannot use defensive force.

It’s only while that window of imminence is open that you can lawfully use defensive force.

Imminence has to do with when you can use defensive force, but what about how much defensive force you can use?  That has to do with the third element:


The law puts any use of force into one of two buckets: the non-deadly force bucket, or the deadly force bucket.

What qualifies as deadly force? Legally, deadly force is more broadly defined than only force that kills.  Force that can cause death is part of the definition, but deadly force also includes force that causes serious bodily injury, like maiming injuries, as well as rape.

What qualifies as non-deadly force? Non-deadly force is essentially all lesser degrees of force that cannot readily cause death or serious bodily injury.

If the threat you’re facing is non-deadly, then you’re only allowed to use non-deadly force in response. If the force you’re facing is deadly in nature, then you’re entitled to use deadly force OR non-deadly force to defend yourself.

If you respond with deadly force to an attacker using only non-deadly force, you’re using disproportional force, you’ve “lost the element of proportionality,” and you are not acting lawfully.

It’s essential to make sure you limit yourself to only the degree of defensive force that’s proportional to the threat you’re defending against.

But what about running rather than fighting?  Does the law require you to resort to flight before you can resort to fight? That brings us to the fourth element of self-defense law:


Could you have safely avoided the fight? That’s the question the fourth element addresses.

A minority of about 13 states impose a legal duty to run away, when you can do so safely, rather than fight.  These are called “duty-to-retreat” states.

The large majority of states do not impose such a legal duty to retreat, even if you could have done so with complete safety.  These are the “stand-your-ground” states.

In the minority 13 states that do impose a legal duty to retreat, however, failing to run when you safely could have is not lawful, loses you the required element of avoidance, and therefore loses you self-defense.

Even the duty-to-retreat states only impose that legal duty when retreat is possible with complete safety. That begs the question, however—was a completely safe avenue of retreat actually available under the circumstances facing that specific defender?

To put it another way, would a reasonable defender under attack have been aware that a safe avenue of retreat was available?  This leads us to the last of the five elements of self-defense law:


I like to call this the “umbrella” element because it overlays the other four.

Everything that you perceive, decide, and do in defense of yourself or others must be reasonable and prudent, given the circumstances you faced, the information you knew, and your abilities (or disabilities).

Mistakes in self-defense are allowed, and a mistaken use of defensive force can still qualify as lawful self-defense. The bad guy’s “gun” turned out to be a toy? That’s not a problem for your defensive use of force against the apparent gun if perceiving it as a real gun was a reasonable belief under the circumstances.

Bottom line: We’re not required to make perfect decisions in self-defense, just reasonable ones.

What’s reasonable to one person may not be reasonable to another, however. This element of reasonableness is partly a reflection of the particular defender under the specific circumstances.  The reasonable perception of, and defensive options for, a defender who is young, healthy, and fit may well differ from the reasonable perceptions and defensive options of an elderly, ill, or disabled defender.

The 5 Elements Are Easy … But Real Life is Complicated

And that’s it, folks—the 5 MUST KNOW elements of self-defense law. Easy-peasy, right? How hard can applying just five elements be?

Well, maybe more complicated than one might think. While the elements themselves are relatively simple, applying them to a real-world case can be complicated.

Why? Because the real world is not simple. It is messy and involves real people, real victims, real violence, and so forth.  So, applying these elements to the real-world takes practice.  Applying them quickly enough in real-time to respond correctly in the critical moment of an attack takes even more practice.

And that’s precisely why we do what we do at Law of Self Defense:  We help you understand the law of self-defense so that you can not only make yourself hard to kill, you can also make yourself hard to convict. 

3. State v. Istre, 2020 La. App. LEXIS 386 (LA Ct. App. 3rd 2020)

March 4, 2020

LOSD Summary:

Facts:  This case involves a mother, the Victim in this case, who is seriously injured in an attack by her daughter’s boyfriend, the Defendant.  The Victim had previously taken out an order of protection against the Defendant, but when the Victim unexpectedly returned home early from work she found both the daughter and Defendant in her home.

The Victim would tell the trial court that she ordered the Defendant out of her home, and the Defendant became physically violent, repeatedly striking and shoving the Victim.  The Victim managed to retrieve an unloaded pistol from her bedroom, which she intended to intimidate the Defendant into leaving her home. Instead, the Defendant took the pistol from her, and upon finding it was unloaded became even more enraged.

At this point, the Defendant again attacked the Victim, apparently put her dominant shoulder into some form of joint lock, and broke her arm.  The Victim would ultimately require surgery for the injury.  Despite the surgery, the Victim would testify that she would never again have full use of her dominant hand.

In contrast to the Victim’s account of events, the Victim’s daughter (the Defendant’s boyfriend) testified at court that it was her outraged mother (the Victim) who was the initial physical aggressor.  The daughter would testify that it was only after the Victim threatened to shoot the Defendant and retrieved the pistol from her bedroom that the Defendant used force against the Victim, in self-defense.

The Defendant himself did not testify at trial.

Law: The Defendant was charged with second-degree battery and claimed self-defense as his legal defense at trial.  The six-person jury unanimously convicted him as charged.

Analysis:  The Defendant appeals his conviction on various grounds, the most relevant for our purposes being that the state had failed to prove that he did not act in self-defense.  He cites the daughter’s testimony in support of his claim of self-defense and claims again that he was simply trying to leave as requested by the Victim when the Victim pulled a gun on him.  He only broke the Victim’s arm in an attempt to disarm her and defend himself.

The court of appeals notes that on this particular issue the only real question is whether the version of events told by the Victim or the version of events told by the Defendant was the more credible.

This is a matter of fact-finding, and fact-finding falls squarely and solely within the purview of the jury.  Given that the jury chose to unanimously find the Defendant guilty, rather than to acquit him on the basis of self-defense, it is evident that they believed the Victim’s, rather than the Defendant’s, version of events to be the more credible.  The court of appeals will not disturb the factual finding of the jury.

Conclusion:  The court of appeals affirmed the Defendant’s conviction.

Notes/Comments:  This case provides a useful reminder that the weighing of evidence happens almost entirely at the trial court level (with rare exception on the very boundaries of evidence, such as if there is literally zero evidence on some issue, and therefore nothing to weight at trial).  It is at trial that evidence is presented, witnesses testify, experts give opinions, and so forth.

None of that happens at the appellate court level. The appellate courts do not see actual evidence, hear witnesses or experts.  The appellate merely has the transcript and other written records from the trial court.  One cannot, however, adequately judge such matters as witness credibility from a transcript.

Accordingly, the role of the appellate courts is not to re-weigh evidence.  Whatever fact-finding conclusion the jury came to will be what holds, period.  What the appellate courts do review aggressively is how the law was applied at the trial court level.  The facts, however, are presumed to be those consistent with the prosecution’s narrative that led to the guilty verdict at trial.

It’s also worth noting that another ground for appeal by the Defendant was the admission into evidence by the trial court of the order of protection taken out by the Victim against him prior to these events, thus allowing the jury to learn of that order of protection.  He argues this was reversible error by the trial court, on the basis that the order was irrelevant to these events and the second-degree battery charge for which he was being tried.

The court of appeal concludes that it was proper for the trial court to admit the order of protection into evidence.  The court’s reasoning, however, is badly flawed.  Explaining why would be beyond the scope of this summary, but I encourage you to read the entire decision and identify the flaws in the flaws in the court of appeal’s reasoning on this issue.

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