The Potential Pitfalls of Deadly Force

I gotta tell you, if you missed Sunday’s Armed American Radio program last weekend, you missed one of the most valuable hours I’ve ever run, and that’s saying a lot after eight years of award-winning broadcasting. My guest in the first hour was famed self-defense attorney, Andrew Branca, also the author of the book The Law of Self Defense. I can’t tell you how many books I’ve read on the subject, but it’s a lot — and this one ranks right up there with the original one that started it all: In The Gravest Extreme, by Massad Ayoob. These two books must be on your bookshelf if you have made the decision to carry a firearm.

The foreword to Andrew’s book, in fact, was written by Massad, who notes the importance of what you’re about to read while admitting he is writing it on behalf of a competitor. I don’t see it that way, as I believe we simply can’t have too much info when it comes to protecting ourselves from the legal pitfalls of using deadly force, if we must. In other words, they compliment each other, not compete, in my opinion. No matter, buy them both and read them, ok?

Having said that, let me get back to the importance of my conversation with Andrew on Sunday. One hour was not enough to cover everything I wanted, so I focused on what Andrew describes as the five elements that must be present if you are to avoid going to prison for the use of deadly force (even if you are right). Those five elements, according to Branca, are:

  • Innocence
  • Imminence
  • Proportionality
  • Avoidance
  • Reasonableness

The ensuing conversation was eye-opening, to say the least. Here’s an email exchange that I covered on Wednesday’s Armed American Radio’s Daily Defense for the benefit of listeners. It consists of an email I received from a listener, which I then forwarded to Andrew, and his subsequent response:

Howdy Mark,

Like your show and what you do to support the 2nd Amendment. That said, between Andrew’s book and your discussion with him on Sunday, I have decided to quit my conceal carry. Yes, I know I could regret it, but legally it’s just not worth it. Do all the right things and still possibly go to jail? Nope. Don’t think so. I will continue to keep my firearm for home defense but not concealed. You all stay safe.


Andrew Branca responded:

Hey Richard,

Your concerns about the legal risks of carrying are something I hear from time to time, and there’s certainly nothing wrong with having those concerns. They are reasonable concerns. Carrying a firearm for personal protection is a huge responsibility with substantial risks, and it certainly isn’t for everybody. And as I said on Mark’s show, it’s certainly possible that you could do everything right using a gun in defense of yourself or your family and still end up going to jail. Witnesses can lie, evidence can be lost, your defense attorney could turn out to not be very good. Stuff happens.

The reason I emphasize that point, however, is not to discourage people from carrying a firearm for personal protection, if they are otherwise prepared for that responsibility, but to make sure they are making an informed decision.  

Knowing that I could do everything right and still go to jail, I personally still carry a handgun every day, and have done so for my entire adult life. Why? Because I personally believe that there are worse things than going to jail.

For me personally, dying would be worse than going to jail. Watching my wife or children be murdered would be worse than going to jail. Having my wife or daughters raped would be worse than going to jail. Being permanently maimed or crippled, or having a member of my family be maimed or crippled, would be worse than going to jail.  

Were I compelled to use my handgun out on the street to prevent one of those outcomes from happening, and despite doing everything right I ended up unjustly convicted and in jail, I still believe it would have been the right thing to do, and I’m prepared to live with that outcome. It would suck, no doubt, but I’d rather have my wife and children alive and me in jail, however unjustly, than have them dead or maimed and me not worried about prison. I’d rather have that gun on my person, acknowledging all the risks and responsibility involved, than have myself or my family destroyed by a criminal predation while out shopping because I’d left my gun home in the safe.

That doesn’t necessarily mean YOU should have the same perspective, make the same decision, or be prepared to live with a similar outcome under similar circumstances — we’ll all draw that line in a different place, and where you draw your line is entirely up to you. Nobody else can or should make that decision for you. If YOU are more comfortable leaving the gun at home, then that’s the right decision for YOU. You certainly won’t hear me criticize you for it.

After all, it’s you who has to live with the consequences, either way.

Best regards,


Since receiving Andrew’s response, Richard has rethought his position. I hope you pay as much attention to this exchange as I did. Trust me here, if you carry a firearm, make darn sure you understand what’s at stake if you have to draw your weapon. No matter what happens, life as you’ve known it will be over.

I’ll see you on the radio on Tuesday and Wednesday from SHOT Show in Las Vegas.