Frank,
A couple of quick points in reply:
1) I listened to the entirety of Mr. Branca's video interview. I was very impressed with his presentation, but more for his communicative skills than for the content. Content-wise, all he did was restate a lot of common knowledge. I did like the way he focused on the physical reactions to a shooting event, and the need to manage those during the response. But at the same time, it's pretty clear that he didn't understand (or at least fully articulate) the boundaries of "Public Safety Information") (all of the Quarles stuff). I was also concerned that he, at least, inferred that responding LEO's would have a bias toward arresting a person involved in a defensive use-of-force. So long as there is no apparent risk of flight, there is actually a pretty strong bias against making an arrest at the scene. When a person is arrested, a number of "Time Clocks" start to run. The Gerstein hearing must be held within 48 hours (in all states), and similarly short deadlines (depending on state law) apply to the Arraignment and Preliminary Hearing. The state has the burden of presenting evidence at both the Gerstein Hearing and Preliminary Hearing. The net effect of making an on-scene arrest is that you can't do a complete investigation and still meet the deadlines. Additionally, Mr. Branca appears to discourage efforts to explore self-defense issues with responding officers (refer to his discussion regarding the statement "I wanna press charges") (and I'm also questioning his expertise as a lawyer on this point. In every state where I'm familiar with the law, it's not victim that "presses" the criminal charge, it's the state's prerogative to do so).
2) I'll agree that Mr. Branca is really good at what he does. But the question we were debating was: 1) Is he the "Leading Expert" in the field, and 2) Should we accept his reported statement that a person declining to claim self defense to first responding officers would be denied a self-defense instruction at trial as fact based on his expertise. You're an attorney, would you accept a laudatory book endorsement as establishing either as a fact? Would you blindly accept any statement made by an expert, without checking the basis for the expert's claim?
3) As to the Dunn case, there's no possibility that Mr. Dunn could have claimed "self -defense" to first responding officers because he fled the scene prior to the arrival of the officers. He did make a claim that the occupants of the Dodge Durango that he fired at had threatened him with a shotgun, but it appears from the content of the decision, that the Durango remained at the scene, was forensically examined, and that no shotgun was found. The decision is silent about other investigative measures taken at the scene, and if the initial scene containment efforts were sufficient to conclude that there was no shotgun present. Without knowing what the scene containment efforts were, it's only up to speculation whether the shotgun ever existed.
But we gotta go back to the point being debated "Does a person forfeit their ability to receive a "Self Defense" instruction if they fail to claim self defense to the first responding officers?" Dunn is pretty clear that the answer is "NO." Dunn made no such initial claim, and his trial court did consider (and reject) his claim of self defense.
4) As to the Trujillo case, we also gotta go back to the question being debated - Does a person forfeit their ability to receive a "Self Defense" instruction if they fail to claim self defense to the first responding officers?" Trujillo also tells us that the answer is a clear "NO". Trujillo made no such initial claim and was provided a self-defense instruction at his trial. His silence at the scene was never directly used against him at his trial. It was used to impeach his testimony at trial. That's a huge difference there.
5) But the final point is really whether a person involved in defensive use-of-force should be guided by a "Say - Don't Say" list, or by guiding principles, I really gotta strongly argue in favor of the guiding principles. I've been involved in my own share of on-duty force incidents, have responded to many more, and have supervised the response to still many more. None of them have been identical, and each had something unique about them that would have made if difficult to apply the "List" approach. At the same time, if one understands the "Guiding Principles" approach, then one can use that knowledge to figure out a unique circumstance that could not be resolved with the "List" approach.
6) If seen you offer an article written by Ms. Steele (the name escapes me at the moment) regarding the use of the 'Self-Defense" defense. I've read it, and thought it was a really good article. One of the key points made in it was that a person effectively forecloses other avenues of defense by claiming "self defense." I have to think that making such foreclosures, at the initial scene, is both unwise and unnecessary. Mr. Branca seems to explain the same when he cautions that the statement "I wanna press charges" is gonna invite discussion about the elements of the charges to be pressed, and the evidence showing those elements. By the same token, an on-scene claim of self-defense is gonna invite questions about the existence of threat, and the alternatives to dealing with the threat. None of those discussions relate anywhere to the Quarles line of cases and, IMHO, should wait until one has been able to recover from the stress of the event, and confer with counsel. That's what LEO's do when involved in a shooting and it's good advice for private persons as well.
