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Marty Hayes

Going Too Far: Self-Defense Vs. Excessive Force

A discussion on the extremely fine line between self-defense and excessive force.

As of this writing, 41-year-old Tyrone Frasier of Stockton, California, is facing several criminal charges in connection with entering a Stockton 7-Eleven and attempting to steal a large amount of merchandise. Frasier commandeered a garbage can and was behind the counter, filling the large garbage can with cigarettes, sweeping them off the rack and into the bin. By the time he was stopped, the garbage can was about half full with hundreds of packs of cigarettes (and at the going rate that would be thousands of dollars’ worth of merchandise).

While that’s not particularly newsworthy, what happened next to Fraiser is.

The incident was caught on cell-phone video, and the video shows two store employees stopping the theft by beating Frasier with a large piece of wood over and over until Fraiser begged for them to stop. (To watch the video, Google 7-Eleven robbery/beating.)

It’s clear that a person has a right to stop criminal conduct by using force—but that force must be reasonable. By my count, one of the clerks used this wooden stick to hit Frasier 37 times. It reminded me of watching the Rodney King beating, and, in fact, there was some similarities.

In the King incident, four police officers attempted to apprehend King after a high-speed pursuit. While the officers were first acquitted of any wrongdoing, later they were found guilty of federal charges, and the department lost a large civil lawsuit. This could happen here, too, because the two clerks are not facing any criminal prosecution, at least at this time.

In the 7-Eleven case, I could see that the thief communicated he was giving up after receiving strikes with the stick 10 times. But, instead of stopping the beating, they continued until the guy recording the incident with his phone convinced the clerk that he had given up.

I can understand the frustration the clerks had dealing with runaway theft from their store, and it’s my understanding this was not the first time the thief entered the store and blatantly stole items. But, if you are going to use force against someone who is committing a crime and want to avoid arrest, trial and conviction, then that force must be reasonable.

Defining ‘Reasonable’

What is reasonable force? I can’t tell you.

What is reasonable will be determined by the jury, and it will be your responsibility (through your attorney asking you questions at trial) to convince the jury you needed to use the amount you used. Your job will be to convince the jury that the force used was no more than necessary to stop the criminal attack.

I’m reminded of a murder case I worked on as an expert, where my job was to do a shooting incident reconstruction. The incident centered around one individual (defendant) shooting the deceased who the defendant said was attempting to disarm him. They were both inside the cab of a truck, and there was some decent evidence to validate this claim. But the problem is that, after the first shots were fired in response to the attempt to grab the gun, the defendant kept shooting—for a total of 10 times, with the last bullet striking the deceased on the top of the head.

That’s not a reasonable amount of force, even if one believed the defense of the initial attack was warranted. I’ve heard well respected firearms instructors say to “shoot ’em to the ground,” and if they were lawful to shoot him once, they’re lawful to shoot him many times.

Maybe, but then again, maybe not. I’ve worked on several cases where excessive shots meant excessive force, which meant conviction and prison time.

Physical, Non-Deadly Force

Now, let’s get back to the use of physical non-deadly force. Black’s Law Dictionary states reasonable force is “force that is not excessive and that is appropriate for protecting oneself or one’s property.” In this instance, the thief wasn’t presenting a deadly threat, although there’s some evidence that he had intimated he had a gun. But, as the camera showed, there was clearly no gun.

I have heard the practical working theory is that, when protecting yourself or property, use equal force, then a little more. Continuing to beat someone once they are disabled is excessive force. Most police officers and deadly force trainers recommend not attempting to apprehend someone who is committing a property crime, primarily because you do not typically have the physical means to control the guy after he is stopped. It might be logical to carry a heavy-duty zip tie worked inside the belt, just in case.

As far as self-defense, the force would be just a little more than was being used against you. This is why pepper spray and Kubotans are effective intermediary tools one can easily carry. Training, of course, is necessary, so one can explain how their actions were within guidelines when using that intermediate force. A little self-defense training can go a long way.

Editor's Note: This article originally appeared in the February 2024 issue of Gun Digest the Magazine.


More Knowledge For The Armed Citizen:

Should You Modify Your Carry Gun?

If you modify your carry gun, will it work against you in court if you’re forced to use it defensively?

There may be a time where a prosecutor will try to make an issue out of the newfangled optical sight on a pistol someone used in self-defense. In fact, it’s likely already happened, and there’s a long history of attacking the gun in court, as opposed to the individual. The logic is that “if the gun is evil, the owner must be, too.”

I’ve been involved in the firearms training industry long enough to have seen progression, starting with officers putting custom grips on their Smith & Wesson Model 19 revolvers and then laser grips on those same revolvers, to using semi-auto pistols and night sights. The progression continued to adding laser grips to semi-auto pistols and, lately, adding red-dot sights.

But that’s not all of the modifications people do to their sidearms. Many people, unhappy with how hard the trigger pull is, take the pistol to the local gunsmith for a “trigger job.” Or, they do one themselves after reading a gunsmithing book or watching a YouTube video. In fact, I’ve personally done all of the above to different handguns I’ve used over the years.

Walking The Line

The question I often get from members of the Armed Citizens’ Legal Defense Network is this: Will doing one or more of these modifications work against me in court? And the answer I typically give is, “It depends.”

Was the modification a primary reason for the gun to malfunction (like in an accidental discharge because the trigger job was faulty)? Did that result in injury or death to someone? Are you being charged with a crime because of that injury or death? If so, then, yes, it’ll likely be used against you.

But what if the modification you made to your pistol was intended to simply make it shoot more accurately for you, such as night or laser sights in low light, or the aforementioned red-dot sight? Then, that’s probably not a big deal … unless the prosecutor wanted to portray you as a crazed killer who spent money to modify his pistol so it’d be a more proficient killing machine. That accusation can be easily defeated if your attorney understands the issues of modifying handguns and is ready to lead you through a rational argument for the jury.

So, what would that argument likely be?

For starters, a discussion of the training you received prior to the incident would take place, where you learned that you were responsible for all bullets that left the barrel of the gun. You’d also likely discuss your knowledge of armed citizen encounters, where innocent persons were struck by bullets that missed their intended targets. Thus, you’d be able to testify that you were very much aware that, in the event, you felt it necessary to use the firearm for its intended purpose (defense of self or others in the face of illegal use of deadly force against you or others) that you wanted to make sure all bullets you fired hit your intended target.

After the above testimony, you or your expert would discuss why the modifications you had done to your gun were meant to increase the likelihood that you wouldn’t miss. You’d discuss what a “manageable trigger” is and why you paid money out of your own pocket to make sure the trigger was satisfactory.

You or your expert would discuss the different modifications done, such as why a better set of grips would improve the manageability of the recoil and allow for indexing the sights on target easier. Also discussed would be why night sights would allow you to hit your intended target easier in darkness (and at the same time avoiding missing and hitting bystanders). The same argument would be said for laser-aiming devices and the popular red-dot sights.

When you or your expert’s testimony was made, you should’ve done a very good job explaining (and hopefully convincing the jury) that these modifications were the result of you going overboard to make sure you were a responsible gun owner. Hopefully, you’d never have to testify about this, and hopefully, your defense attorneys would understand that these issues may come up in court regarding your case and take steps to mitigate the issues before testimony.

For example, I worked as an expert on a case where the defendant used a 15-shot 9mm Glock 19 to defend himself and his family. During the trial, the prosecutor asked the defendant how many rounds the gun held (he knew the answer but wanted to get the information in front of the jury). During closing remarks, he made a big deal out of how the defendant used a high-capacity pistol during the shooting.

That case resulted in a hung jury. In the retrial, I once again worked for the defense. But now knowing what the prosecutor would likely try again, I had the defense attorney ask every police officer who testified what kind of gun they carried, and how many bullets it held? (They used Glock 17s, which took 17-round magazines.) By the time the defendant testified again, the prosecutor never asked the question.

Be Safe, Be Smart

Now, having said the above, some modifications might work against a defendant, like deactivated safeties or engraving cute sayings or Punisher skulls on the slide or frame of the gun. Avoid those at all costs. The bottom line is it’s perfectly justifiable to do some modifications to your carry pistol. The key is to know which ones and how to explain them if necessary.

Editor's Note: This article originally appeared in the 2023 Buyer's Guide special issue of Gun Digest the Magazine.


More Knowledge For The Armed Citizen:

Concealed Carry Tips: Avoiding The Stupid

It may seem obvious, but when carrying a concealed firearm it’s even more important to avoid stupid places, stupid people and doing stupid things.

One of the most well-respected firearms instructors still active is my dear friend John Farnam, who teaches occasionally around the United States. As he’s in his 70s, a serious student of the gun would be well served to attend a class from him before he retires. His business name is Defensive Training International, and it can be easily found on the internet. John has a famous saying, or perhaps a code of conduct: “Don’t go to stupid places with stupid people and do stupid things.”

My professional life sees me occasionally serving as an expert in court cases, where some aspect of the case needs testimony in court to explain to the jury a possibly confusing issue. For this month’s column, I will relate some violations of John’s code of conduct I’ve seen in these court cases.

Stop Playing With It

The first case I worked on back in the ’90s involved a teen who was playing with a Smith & Wesson Model 37 revolver when he involuntarily discharged it and killed his sister. He was untrained, curious about guns and sitting in his living room cocking a loaded revolver and de-cocking the gun with his thumb while pressing the trigger. He was also distracted by the TV. When his sister walked between him and the TV, the hammer slipped, discharging the gun. A case of doing stupid things.

The judge found the teen not guilty of manslaughter, primarily based on my testimony of showing how this could have and likely did occur. I didn’t agree with the verdict; in the jurisdiction it occurred, “negligence” was an element of the crime of manslaughter. The attorney must have made a heck of an argument. I wasn’t hired to prove the defendant’s guilt or innocence, but instead simply to explain the mechanics of how this could’ve occurred. I hope the young man went on to become a useful member of society.

Choose Your Friends Wisely

Another early case saw me working on placing blame on who fired the fatal bullet in a drive-by shooting between rival gang members. This was a murder case, where the deceased died as a result of being shot in the back with a 9mm bullet. The defendant wasn’t the shooter, but the driver of the car. Under the “felony murder rule,” he could be charged with, and tried for, murder.

It seemed like a slam-dunk for the prosecution, as the weapon used in the shooting was a 9mm Beretta. But wait … the crime lab report regarding the 9mm bullet indicated it was a full-metal jacket 9mm, weighing 90 grains. Experienced reloaders reading this will now understand why the “slam-dunk” case was dropped by the prosecution after reading my report, explaining the bullet was very likely fired from a .380 handgun from someone on the street.

When the prosecutor read my report, he tasked the detectives to do a larger crime scene search. Lo and behold, a Walther PPK in 9mm Kurz (.380 auto) was found hidden under some bushes near the scene. It turned out to be the murder weapon and wasn’t fired from the car but instead from a buddy on the street. Case dismissed. This was a case of violating all three: stupid places, stupid people and stupid things.

Skip The Sauce

A third case I worked on saw a victim of a robbery using his firearm to shoot and wound the robber (a gold chain had been forcefully removed from the neck of the defendant). Despite the felony committed against the defendant by the shooting victim, a conviction resulted for first degree assault. My role was to do a shooting incident reconstruction, as several rounds had been fired, resulting in bullet strikes to the ground, cars in the area and the robber.

In this case, the defendant also violated all three parts of the code. He sought out the other party who was at a bar and called him out the parking lot. The stupid thing part of the equation wasn’t his gunfire, but his level of sobriety, as in he was sh*t-faced drunk. If there’s one thing I’ve learned over the years of doing these cases, it’s that juries hate drunks with guns.

Skeletons Rarely Stay Buried

Lastly, I worked on a case where the defendant did everything right, but he still ended up being prosecuted because he lied to the police. This case was one where an individual was involved in the killing of one of four individuals, all four of whom were attacking the defendant with fists and shoes. At the time of the shooting, the defendant had been down on his knees and was being beaten and kicked (even in the head).

So, you might ask, why did he get prosecuted? Because he sat down with investigators and wanted to cooperate with the police, but did so without an attorney. During this interview, the police asked him if he had been taking any drugs (a routine question). He answered no. But because he had gone to the hospital to get checked out from the beating and there was blood drawn, the lab report showed a small amount of cocaine in his system. The police rolled the dice to see if they could get “another gun off the street” by convicting the defendant. The lie he told the police was the key piece of evidence that spurred the prosecution. After all, if you lie about one thing, what else are you lying about?

The advice from this corner of the world is never submit to conducting an interview with investigating officers without an attorney by your side. After one full trial that resulted in a hung jury and a second prosecution, the defendant eventually pleaded guilty to a low-level felony and got on with his life.

Don’t go to stupid places with stupid people and do stupid things. Those are words to live by.

Editor's Note: This article originally appeared in the 2023 EDC Special issue of Gun Digest the Magazine.


More CCW Tips:

To Act Or Not To Act: The Good Samaritan Situation

A question that all good Samaritans should consider is whether they would intervene if a threat were to arise.

By now, most people who follow popular news channels have learned about the indictment of 24-year-old Daniel Penny, for second-degree manslaughter by a Manhattan grand jury. The case centers around Penny, who asserts he was coming to the aid of fellow subway passengers when an allegedly homeless man, 30-year-old Jordan Neely, started acting erratically and threatening passengers.

daniel penny jordan neely
Daniel Penny subduing Jordan Neely. Photo: Juan Alberto Vazquez/Reuters.

Penny determined Neely was indeed a threat to himself and passengers in the car, and as he was not carrying a weapon, tackled and physically restrained him. Unfortunately, in order to restrain Neely, Penny wrapped his left arm around Neely’s chin and neck, while other passengers on the train tried to restrain his legs and arms.

The struggle took several minutes, eventually ending when Neely stopped struggling while being restrained. Neely then stopped breathing and subsequently died. Video clips of the struggle are online, but it’s challenging to find the entire video … most are just a few seconds of Penny with his arm around Neely’s neck and chin.

Mainstream media news outlets all say Neely died from a choke hold, but from what I saw when I watched the video, it looked like neither Neely’s air flow was being cut off nor the blood flow to the brain. The autopsy report hasn’t been released, so we don’t know the medical reason for Neely’s death yet.

Paramount to Penny’s defense will be the training he received in the Marine Corp and any other training he received in hand-to-hand combat. If he can show that he had training in controlling combative subjects by controlling the head, and knew the difference between a nonlethal control hold and a lethal choke hold, then he’ll be well on his way to convincing the jury he didn’t use deadly force.

It’ll also be extremely important to his defense to determine what exactly the mechanism of Neely’s death was. A phenomenon called excited delirium is a medical condition that results in death after an individual fights or struggles for an extended period of time. If drugs are also in the bloodstream, it can result in immediate shutdown of the individual’s life. This could’ve been involved in this event, but we will have to wait to see. I certainly hope the defense researches this issue, and if necessary, hires experts to fully explore the issue and testify in court.

Was Prevention Possible?

How could this situation have been prevented?

First, of course, is if Penny hadn’t involved himself he wouldn’t be in jail awaiting trial. But many witnesses report feeling relieved when Penny acted, and these people should be willing to come to court and testify as to Neely’s actions. They won’t be able to state the acts of Penny were justified, but the jury will be able to connect the dots. On the flip side, Penny was the only one who believed the threat was sufficient enough to act, or had the guts to act, so that fact might work against him.

But, having said all the above, the trial will likely be resolved on the question of whether or not the jury believes Penny only used sufficient force to control Neely, and not excessive force. When I saw the video, I didn’t see that level of force. One cannot usually use deadly force against an unarmed person unless there’s substantial evidence that such a use of deadly force was warranted. But Penny has indicated in pre-indictment comments to the press that he never intended to kill Neely, nor did he think his use of force would do so.

Clouded Circumstances

If you’re thoroughly confused by now, that would be normal. There are many factors to consider, and I will attempt to summarize. Penny used force against Neely in an attempt to subdue him, because Neely was threatening passengers in the subway car. When Penny had Neely on the ground with his arm around the neck and head of Neely, others joined in to try to control his limbs. It was clear that Neely was out of control and struggling until he lost consciousness.

At the time of this writing, no clear indication of the cause of death has been released, only the statement that the cause of death was a “choke hold.” But a choke hold by itself isn’t necessarily fatal—it’s the strength and duration that matters.

Experts in the use of force and the use of the “lateral vascular neck restraint” should, and likely will, be used by the defense to convince the jury that Neely’s death was a tragic accident, perhaps caused by drugs and the phenomenon called excited delirium. It’ll be interesting to watch this one play out.

Editor's Note: This article originally appeared in the October 2023 issue of Gun Digest the Magazine.


Know Your Rights:

Self-Defense Law: The Prosecution’s Perspective

Patterns that the prosecution generally exhibits when trying to gain a conviction against an armed citizen.

I’ve worked as a court-recognized expert in shooting cases, (murder, manslaughter and aggravated assault cases) for close to 30 years, and in this time, I have observed a pattern that prosecutors generally stick with when prosecuting and trying to gain a conviction.

Let’s discuss some of these.

The Unarmed ‘Victim’

First, seldom do prosecutors fail to prosecute if the defendant shot and killed someone and the deceased was unarmed. It doesn’t matter to them if a large disparity of force was involved, (like three to four people against one lone defender), or where a person was physically overwhelmed and could only stop the assault by shooting.

I’m reminded of two cases. The first was the famous “Subway Vigilante” case, where a man named Bernhard Goetz shot four muggers in a New York subway. Armed citizens would be advised to look up the case and study it for its educational value.

More recently, unless you’ve been in a coma the past dozen years, you’ve heard of the prosecution of George Zimmerman, a community block watch member who saw a suspicious teenager out casing empty homes. He called 911, reported the activity and then, after 911 dispatch asked him to keep an eye on the teenager, he did just that by leaving the safety of his vehicle and following him on foot.

Zimmerman was then physically attacked, and it was only after he found himself lying on his back with his attacker straddling his chest and pounding his head against the sidewalk, did he draw and shoot his attacker. At first, he wasn’t prosecuted, but when the case became politically charged, the state’s attorney decided to prosecute.

If you shoot someone who’s unarmed and claim you were attacked in an attempt to disarm you, you can pretty much assume you’ll be arrested and likely prosecuted.

Typically, in a mistake-of-fact shooting (you think the object was a gun but turned out not to be), the prosecutor will go ahead and prosecute because you shot an unarmed man, even though you believed the object was a weapon.

Circumstances That Really Matter

Another area where prosecutors routinely prosecute is where the defender shot several times, with at least one of the shots striking the deceased in the back. I’ve seen several cases like this, and the person is prosecuted because of the shot in the back.

Another area where people find themselves under the thumb of the local judicial process is when they’re drunk at the time of the incident. The shooting might have been perfectly justified, but when the cops show up and find the shooter drunk, you can count on an arrest. After all, who is going to believe a drunk? And if it comes out in court that the defendant was drunk, he’ll likely find himself being found guilty.

It has been my experience in working on cases that juries hate drunks. Same for liars. If you lie when talking to the police after the incident, those lies will be printed on 2×3-foot posters and left in front of the jury to wonder what else you’re lying about.

There’s also the problem with leaving the scene of the incident. I just spoke with an attorney who was looking for an expert to work on a case. It turns out that, after the shooting, the defendant fled the scene. If you flee the scene of a shooting, there’s no one left to tell the cops your side of the story, and you’ll be tracked down and arrested. Criminals flee the scene; non-criminals stay and inform the police as to what happened. I ended up turning the case down.

In that same vein, a few years ago an individual shot and killed an attacker, but because he was drunk, left the scene. The next day he turned himself in, but by then it was too late to do himself much good. He’s sitting in prison in Washington state as we speak.

Lastly, one of the most common mistakes armed citizens make after an incident is failing to tell the police what the individual you just shot was doing that made you reasonably believe your life was in danger. When the police arrive on the scene and see a dead body, they’ll be looking for evidence of the crime of murder or manslaughter. Even if you stay, your failure to let the cops know why you shot him will result in your going to jail. If the guy had friends who were with him, they’ll likely tell the cops lies that make you look guilty. If the individual you just shot is still alive, he’ll likely tell the cops lies to make you out to be the criminal.

In future columns, we’ll discuss cures for these ailments and explore ways that you can improve your likelihood of surviving the legal consequences of a shooting and, of course, commenting on cases that come up in the news.

Editor's Note: This article originally appeared in the February 2022 issue of Gun Digest the Magazine.


More Knowledge For The Armed Citizen:

Knowing What’s Behind Your Target

A discussion on the importance of knowing what lies behind your target during a self-defense encounter.

On December 23, 2021, Los Angeles police officer William Dorsey Jones Jr. shot and killed 14-year-old Valentina Orellana-Peralta, who was hiding from a criminal assaulting a patron of the Burlington store in North Hollywood. The officer’s video camera was on, and it clearly caught officer Jones not only shooting the man who was beating a female customer with a bicycle lock, but also killing Orellana-Peralta.

The video shows Jones firing three shots from his AR-15 rifle, apparently striking the criminal suspect, but also at least one shot missing and hitting Orellana-Peralta through the dressing room wall.

There was no indication of a dressing room right behind the criminal, and in all appearances, the death of Orellana-Peralta was accidental.

But not so fast.

While the shooting of the criminal suspect has the appearance of a justifiable use of force, was striking Orellana-Peralta truly an accident? For the sake of this discussion, I’m going to take the side of the family who will undoubtedly be suing officer Jones and the Los Angeles Police Department (LAPD).

Before you dismiss this discussion as not applicable to the armed citizen because it involved a police officer, I can clearly see an armed citizen potentially doing the same exact thing under the same circumstances, with the same exact legal consequences, but with a concealed carry handgun, not a rifle.

Unforeseen Casualties

So, where’s the problem?

The problem—from my perspective as a firearms instructor and expert witness and taking the side of the plaintiffs for sake of argument—is that the LAPD likely trained officer Jones to perform exactly as he did, resulting in the result we saw. In watching the video, officer Jones fired three shots in under a second, start to finish. And if the suspect had been standing still and facing officer Jones, in all likelihood it would’ve turned out fine, as all shots likely would’ve hit the suspect. But, the suspect was sideways at the instant the shots were fired, and he was moving, bent over and starting to fall down as the shots were fired, resulting in at least one miss.

Was the outcome the fault of officer Jones? Not if he had been trained to shoot a multi-shot burst in those circumstances.

I bring this up because I see this occurring all the time in police training. I own a shooting range that leases time to local police agencies, and while I don’t normally observe their training, I certainly listen to it. It’s not uncommon to hear this exact type of shooting sequence with extremely rapid fire (such as three shots in less than a second). And while the AR-15 rifle doesn’t recoil all that much, it does recoil, with that recoil exacerbated by a poor hold on the gun.

You see, the AR-15 also has what looked like an ACOG optical sight mounted on top of the carrying handle. To sight through that optic mounted that way, a person must raise his head, resulting in a poor if non-existent cheek weld—a good cheek weld being a necessary component to shooting rabidly and accurately.

Additionally, shooting that quickly was not called for in that scenario. A single, well-aimed single shot with appropriate assessment would’ve resulted in the same outcome (suspect down, not assaulting anyone), and Orellana-Peralta would be alive today. And at that distance, could’ve been accomplished in the same if not faster time.

If I were a plaintiff’s expert in this case, I’d be delving into the LAPD training protocols and see if officer Jones had received recent training in shooting at moving targets. It’s likely not. I’ve yet to see a police agency address this very important facet of firearms training.

Way back in the mid-1980s, I was the police firearms instructor for a small (six-person) department, and our training then had consisted of standing on a firing line and shooting a police qualification. Then, I learned of the Federal District Court Case Popow v. Margate (Popow v. City of Margate, 476 F. Supp. 1237 (D.N.J. 1979).

In that case, it was found that the City of Margate was likely culpable for a civil right violation, for failure to train. The Court stated:

“The only continuing training was shooting instruction approximately every six months at a range in Atlantic County. However, there was no instruction on shooting at a moving target, night shooting, or shooting in residential areas. Margate is almost completely residential.”

The Fine Training Line

This case will come down to an issue of training. If the LAPD has been training their officers on moving targets, in rapidly evolving, stressful circumstances, then they likely will avoid being found negligently culpable in this case. And if officer Jones can prove he was simply following his training, he too will not be held culpable.

But if the LAPD wasn’t training their officers to meet contemporary risks found on the street and wasn’t teaching officers that every shooting situation was different and a three-shot burst wasn’t the standard response when shooting the AR-15 rifle, then they have a problem.

The plaintiff attorneys are already circulating, ready to swoop in and file suit.

Editor's Note: This article originally appeared in the 2022 CCW special issue of Gun Digest the Magazine.


More On Self-Defense

Self-Defense Trials And Expert Witnesses

Understanding the strategy of using an expert witness in a self-defense trial.

One of the most misunderstood aspects of a self-defense trial, and the legal strategy that goes into it, is the role of the expert witness.

Federal Rules of Evidence, 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if:

  • (a) the expert’s scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  • (b) the testimony is based on sufficient facts or data;
  • (c) the testimony is the product of reliable principles and methods; and
  • (d) the expert has reliably applied the principles and methods to the facts of the case.

This means two hurdles must be met.

First, the proffered expert witness must be able to be accepted by the judge as being a person who possesses advanced knowledge of a particular aspect of the case, and that knowledge must be used to educate the jury as to a facet of the case that the layperson (most jurors) would not know of or understand.

A perfect example of this is DNA evidence, with the expert witness brought into court to help the jury understand what it means in the case at bar. When it comes to scientific evidence such as DNA or ballistic interpretation of gunshots, usually the state/prosecution will utilize local police detectives, who are paid for by the department and usually in the pocket of the prosecutor.

So, in most cases of murder or manslaughter, the defense must hire an expert—someone who is likely an ex-cop or ex-homicide investigator and has the formal training to stand toe-to-toe with the police detective and give the interpretation to the evidence that’s favorable to the defense.

Expert-Witness-Massad-Ayoob-1
Massad Ayoob, a prominent firearms and self-defense author and trainer who has also appeared as an expert witness in many trials.

Primary Objectives

Recently, I was contacted by a public defender who wanted to hire me for a murder case. In this case, the issue to opine on was whether the surveillance camera caught an act of self-defense, as the defendant was claiming self-defense.

I reviewed the video and counted the shots fired, in what sequence they were fired and from where. I quickly determined the defendant was lying to his attorneys (who knew less than nothing about guns) and told them I couldn’t help them. Because it was a public defender case and I was to be paid by the government, I didn’t even bother to submit a bill. I wanted nothing to do with the case.

Another case (my first one) had to deal with deciding how a teenager had suffered an injury to his hand when handling a J-frame revolver and it discharged, striking and killing his sister. I attempted to recreate the injury using an exemplar revolver, videotaped the test and showed the court how the injury occurred.

The second hurdle to be cleared is that the opinion offered must be the result of generally accepted methods of investigation, which need to be discussed in the expert report.

Straight Facts, No Opinions

What an expert witness cannot do is give an opinion as to the ultimate question. Meaning, was the act an act of justifiable self-defense? When someone says they’ll just hire an expert to give such an opinion and they will walk free, it indicates a naive knowledge of the law. Attorneys are guilty of this naivety at times, as the role of the expert isn’t covered sufficiently in most law school curriculum. I spend a lot of time telling attorneys I cannot give the opinion they seek, but usually the evidence can be explained so the jury understands what the prosecutor is saying isn’t plausible or likely to have occurred, leading to that acquittal.

Occasionally, the expert witness can make such a statement though. For instance, when the prosecutor asks for the expert’s motive for testifying. This usually comes up in pro bono cases (meaning the expert is working for free, which happens occasionally) when the case is so egregious and there’s no money to pay for the expert. Some experts take the case anyway, as I’ve done on occasion.

Typically, the question of how much you’re being paid to testify is asked of the expert, implying the expert will say anything the defense wants him or her to say for the money. When this occurs, it opens the door to the following response: “Well, nothing counselor.” And if the gods are shining upon the expert that day, the attorney will then ask “Why?” The expert’s response usually follows something like this: “I took this case for no fee, because I have never seen such a miscarriage of justice in all the time I have been doing this.”

I have only had it happen to me once in my career, but it was enjoyable to be able to answer the question.

Regular Rarity Of Expert Witnesses

Expert witnessess are likely needed in just about all self-defense cases but, for two reasons, are rarely used.

The first reason is the attorneys handling the case don’t realize they need one, and the second reason is experts typically cost a great deal of money.

The fact of the matter is that many otherwise qualified people simply don’t understand they could become a court-recognized expert and never pursue it. If the industry had an armed citizen who was a recognized expert in all counties in the country, willing to testify for a fellow armed citizen who was being prosecuted for a legitimate act of self-defense, we’d see fewer innocent persons convicted.

Think about becoming one of these experts.

Editor's Note: This article originally appeared in the April 2022 issue of Gun Digest the Magazine.


Know Your Rights:

Escalation Of Force And Self-Defense

A discussion on escalation of force and reasonable-use force when it comes to self-defense.

Most people remember the old childhood game called “Rock Paper Scissors.” To play this game, two or more people get together and, on the count of three, either show a fist (rock), a flat hand (paper) or a fist with two fingers extended (scissors). The rules of the game are simple: A rock can smash scissors, scissors can cut paper, and paper can cover rock. If you display one of the three and aren’t smashed, cut or covered by any others, you win.

Well, just a short 60 miles from my house, a real-life game of rock paper scissors took place—this time with a verbal threat, a can of pepper spray, a flare gun and a handgun. It went like this.

First, a man in a Fred Meyer store saw another man shoplifting. Instead of doing the prudent thing and simply alerting a store employee, he decided to take things under control by himself and confront the shoplifter. The shoplifter took exception and started threatening the do-gooder. The do-gooder decided he wouldn’t be threatened in this manner and pulled a can of pepper spray out of his pocket, spraying the shoplifter.

That should’ve ended the confrontation, but instead of crawling off into a cave, the shoplifter pulled out a flare gun and again threatened the do-gooder. At that time, believing he was now the victim of a serious threatened assault, he pulled a handgun, after which the shoplifter ran off to be arrested later for second degree assault. If this was caught on store surveillance cameras, it’d be fun to watch.

Escalation Of Force

And this story brings us to the theme of this month’s column: escalation of force and reasonable use force in self-defense.

Was it reasonable for the do-gooder to confront the shoplifter to begin with? In the state of Washington, a merchant can detain a suspected shoplifter, but not a private citizen—unless the value of the item in question is greater than $750—at which point it would be a felony, and the private citizen may use reasonable force to detain the individual and deliver him or her to a police officer. Only a merchant or one of his or her employees can make a citizen’s arrest for shoplifting if the value of the item is less than $750. For the purposes of this story, we’ll give the do-gooder the benefit of the doubt and place the value over $750.

But when the shoplifter started threatening the do-gooder (he was 17 years younger than the do-gooder), the do-gooder decided to pepper spray the shoplifter. Justified? Probably. And the do-gooder didn’t face any criminal charges from the pepper spraying act.

But we all know a flare gun trumps pepper spray. I also wonder why the pepper spray didn’t work better, because the shoplifter, after being sprayed, still had the physical wherewithal to decide to draw the small gun designed to shoot flares into the air. I don’t know about you, but I’d consider a flare gun capable of causing great bodily injury and even death.

In response to this escalation of force by the shoplifter, the do-gooder—who had a valid license to carry a concealed handgun—drew his lawfully concealed handgun and ended the confrontation. I’m not going to second guess the do-gooder, but perhaps I might’ve shot the guy at that time. Let’s pretend for a moment that did happen and the shoplifter died. The headlines would’ve reported, “Man killed for shoplifting.”

Would the do-gooder have been arrested? Well, it depends on the story the police heard when they arrived. If the do-gooder simply stated, “I want my attorney,” then likely yes, he would’ve been arrested. Hopefully, there were witnesses and the flare gun threat came to light. The police in that jurisdiction likely would’ve released him without charges, as most police in our area are very pro-armed citizen.

But what if there had been no flare gun? What if the shoplifter had simply been physically threatening the do-gooder? I’d predict a very long legal process for the do-gooder who, even while interdicting a crime in progress, would’ve used excessive force by shooting (or frankly, even drawing the handgun and threatening to shoot).

Be The ‘Reasonable Man’

Across the nation, the right to use force in self-defense is tempered by the necessity to only use the degree of force a reasonable and prudent person would use under the circumstances. Each use of force will be analyzed by the reasonable man doctrine.

What would a reasonable and prudent person have done under the same circumstances? And was the force used reasonable under the circumstances? That said, you don’t get to decide what’s reasonable—that’s the role of the jury.

Editor's Note: This article originally appeared in the June 2022 issue of Gun Digest the Magazine.


Know Your Rights:

  • Carry Law: What Is A Righteous Shooting?
  • Concealed Carry and the Right to Remain Silent
  • Tips For Communicating With Police After Shootings
  • Concealed Carry: After the Shooting
  • Q&A: Massad Ayoob On Self-Defense In 2020 America
  • Lethal Force: When Less Is More

    Debunking the flawed “shoot ‘em to the ground” concept when it comes to using lethal force for self-defense.

    About 15 or so years ago, the concept of “shooting the person to the ground” came into vogue, and while many instructors gave the idea up when the ammo crunch hit, I still know a few who hang onto that ill-conceived idea. Let me tell you why that advice is, in my opinion, ill conceived.

    self-defense-less-is-more

    Tactical Considerations

    First, it’s not really tactically sound for a couple of reasons. Assuming your life is in grave, immediate danger (meaning you need to stop the individual as quickly as possible), would a single or perhaps two well-aimed shots into the upper thoracic cavity (heart, spine or arteries to the brain) be more likely to put the individual out of commission quicker than a half a dozen randomly placed shots? An argument can be made for either proposition, though the one or two well-placed shots will do it quicker.

    Drawing and firing one well-placed shot will take less than 2 seconds for most well-trained armed citizens. For two shots, add a half-second for a total of 2.5 seconds. If you were able to anticipate the need to shoot and had the gun in your hand, then cut a second off the time. Can’t do it in 1.5 to 2.5 seconds? Then it’s time to go to a reputable school and learn that skill.

    On the other hand, if you shoot six (or more) shots rapid fire, you can still accomplish that in the same time. But what are your chances of making a stopping hit? Probably less than one or two well-aimed shots. Don’t believe me? Go to the range with a buddy and a timer and give it a try. You might be surprised. What we’re looking for are shots within a 5- or 6-inch circle on target. Start at 5 yards and then give it a try at 7.

    The next tactical issue pertains to potential additional attackers. Depending on the number of rounds in the gun, you might just run out of ammo before you can deal with the second and/or third subjects.

    Legal Considerations Of Lethal Force

    There are two other considerations, both legal ones, that make the rapid-fire volley of shots until they’re on the ground really bad advice. You see, you’re responsible for all the bullets you fire, not just the ones that hit the intended target. If you miss with one or two shots, where are those slugs going to land? Hopefully not in an innocent bystander.

    Then, there’s the consideration of the shots that do hit the target. Are they all going to be in the front of the subject and at an angle that shows he or she was attacking you? Or, will one or two find their way into the back or side, at which time there’s a difficult argument to make your life was in danger when those shots fired. This can be diffused, but it’ll take expert testimony and a judge who understands the issue. I’ve worked on several cases where this was an issue … with mixed results.

    Lastly, the “shoot ’em to the ground” advice will very likely result in a murder or manslaughter prosecution because every shot fired will be accompanied with a use-of-force analysis. Perhaps the first two to three shots were deemed necessary, but a prosecutor, especially one on the more progressive side of the prosecutorial scale, might decide to prosecute because he or she believed the last couple weren’t necessary.

    I recently worked on a case where the defendant fired 10 shots, nine of those striking the deceased. It was determined that the second-to-the-last shot fired was an instantly fatal shot, although others may have been fatal within a short period of time. But a shot into the brain was the one that sealed the defendant’s fate and was completely unnecessary, as the instant perceived threat to the defendant had stopped.

    Train With Purpose

    Additionally, there’s the axiom that you’ll perform as you train. If your training primarily consists of multiple shot volleys, then it’s likely you’ll do just that when you respond under stress. We see it all the time in competition shooting, where the shooter is used to firing two shots at each target, and when the time comes when only one shot is required, many times he or she fires two anyway.

    Vary your training so the only programed response to live threatening events is the draw stroke. How many shots you fire must then be determined by the particular event and while that might just take a moment longer, it’s a moment that’ll very likely prevent you from a long prison term.

    Editor's Note: This article originally appeared in the May 2022 issue of Gun Digest the Magazine.


    Know Your Rights:

    Living In An Active Shooter World

    At this very moment, it’s likely that someone is thinking about becoming the next headline, the next person to grab a gun and go into a school, shopping mall or sporting event—and start shooting. If you’re in the same proximity, are you prepared to stop him? We’re talking legally, morally, tactics, equipment and skills.

    Legally

    Every jurisdiction allows the use of force in defense of self or others, if you have reasonable grounds to believe lives are in danger. In an active shooter situation, when blood has been shed and continues to be shed, you will not be held culpable for any law violation, unless you shoot the wrong person or persons.

    And, yes, if you pull up to the school and hear shooting and screaming, with kids running away from the sound of the shooting, you can enter that gun-free zone to save kids’ lives. It’s called the doctrine of competing harms; if you do not understand that term, look it up.

    Morally

    There’s no question that putting yourself in harm’s way to save innocent lives is the moral thing to do. Let’s move on.

    Tactics

    Most instructional shooting schools teach a variety of tactics first designed for law enforcement, and if you’re fortunate, they’ve been correctly adapted for the civilian sector. But they likely don’t cover teaching what to do in an active shooting scenario, except the mention of running away.

    I’m not a hero, and I don’t plan on placing my life in danger for no serious reason. But if I see innocent lives being taken, I’ll attempt to intervene, and if I get taken out doing so, it was God’s will. With good health, I have another 30 or so years left on this planet. If I go early, that’s fate. If I go because I was trying to save innocent school children, I can’t think of a better way to go.

    There’s one firearms training school that will teach you how to even the odds a little—retired Lt. Col. Ed Monk’s Last Resort Training. Monk has been studying the active shooter problem for years and is now teaching many courses around the country regarding facing the active shooter threat. He’s easy to find; Google is your friend.

    Equipment And Skill

    The armed citizens’ world is being overrun with tiny polymer pistols shooting a dozen or so 9mm rounds. That’s great news, as so many more people are actually carrying guns for defense, as opposed to storing their blaster at home in their underwear drawer.

    But is that tiny polymer wonder up for the job of stopping the body-armor-wearing, AR-15-toting killer?

    Sure, if you get close enough for a head shot—but in my world, closing on a hard target isn’t the optimum strategy. Instead, I’d like to take that shot from behind hard cover from at least 25 yards away. That means using a full-sized pistol, not a mini.

    You see, while baby 9s are great for concealed carry and should do the job nicely at the counter of your local convenience store, the short sight radius and smaller sights make that headshot between 25 and 50 yards more luck than skill. I’d rather tip the scales in my favor by having a 4-inch barrel or greater and a good set of combat sights. According to Monk’s research, once you engage an active shooter, he’ll either turn the gun on himself or return fire upon you. It takes a little more work to carry a full-sized gun concealed, but it’s a trade-off worth considering.

    However, along with the equipment to engage an active shooter at long distance, one also needs the requisite skill. If you don’t have access to competent training, you can teach yourself … once you have the basics down. An 8-inch steel target at 25 yards that you can ring consistently will work great.

    But some people don’t have access to that distance of shooting range, and they have to settle for the commercial indoor range. No problem: Practice shooting inside a 2-inch circle at 7 yards. That equates to a 6-inch group at 25 yards. If you can do that consistently, you should be well on your way to active shooter interdiction competency.

    Editor's Note: This article originally appeared in the August 2022 issue of Gun Digest the Magazine.


    More On Self-Defense:

    Dissecting The Texas Taqueria Shooting

    A closer look at the Texas taqueria shooting reveals that when it comes to self-defense, sometimes the devil is in the details.

    “Customer Shoots Robber in Houston” is what the headlines say. In fact, if you Google that phrase, you will find the video showing the incident. Many of the search results show news stories that include the video edited to not show the actual shooting, but if you dig deep enough, you can find the unedited footage.

    It’s worth finding that video. But, was it justified?

    At first blush, it’d appear so—but the customer (who, at the time of this writing, has yet to be identified), does a remarkable job of attempting to snatch defeat from the jaws of victory.

    Texas-Taqueria-Shooting-KHOU-11
    A screenshot from security camera footage showing the moment before the Texas taqueria shooting occurred. Credit: KHOU 11.

    A Legal Look

    First off, the robber was using a fake gun. This fact could be used to suggest that deadly force by the shooter was not warranted, but even a first-year law school student could successfully argue this point. The elements of the crime of robbery include the taking of property by the threatening of illegal force, and here the robber was clearly using illegal force to take property. (He actually committed several robberies, as he took money from several individuals while threatening them with deadly force.)

    Even though the gun was fake, if the victim believed it was real, that’s enough to fulfill the elements of the crime of robbery. And, if the shooter felt his life or the life of someone else was in imminent danger, then the shooting would be justified.

    At first, the shooter complied with the robbery request, throwing an object on the floor (presumably his wallet). The robber then went on to take possessions from the other patrons of the taqueria. As the robber was leaving and at the moment of the shooting, one can see that the robber is still threatening one patron as he moved toward the door, so shooting the robber (even in the back) was clearly justified because he was threatening the life of another patron.

    If the gun had not been fake, however, I wonder if the robber would have shot the patron upon being struck in the back by the gunfire. Most instructors I know would advise not shooting when a gun is being held either on you or someone else due to the very real possibility of a spasm of the hand causing the gun to fire. Nevertheless, I think most would agree that the first shot was justified. After that, it gets problematic from a legal standpoint.

    Complicating Factors

    The video shows the shooter drawing and firing four rapid fire shots into the back of the robber as the robber makes his way to the door. A closer look at the first four shots shows that, after the second shot, the robber wasn’t threatening anyone, including the shooter. The robber is falling flat on his face and clearly not a threat, but he receives two more shots as he’s falling.

    Were these shots necessary? A case could be made for either argument.

    Then, the shooter gets up and follows the robber, shooting him an additional four times as he laid on the ground. Next, the shooter picks up the fake gun and, moments after doing so, the shooter fires one more shot toward the downed robber’s head.

    A total of nine shots were fired by the shooter. A couple of seconds after the first four shot in rapid fire, another four shots were fired in a more deliberate manner—about one per second. Were these shots justified?

    If these shots weren’t justified, how does that work against the necessity that any use of force, including deadly force, must be reasonable under the circumstances? This will be the question for the prosecutor or the grand jury to answer.

    Now, if that isn’t problematic enough, the shooter then fires one more shot “toward the head” of the downed robber. I wonder if that last shot was the fatal one fired? If so, I can see an indictment and prosecution.

    Questionable Actions

    But wait, there’s more! The actions by the shooter—after all the shooting was done—don’t favor the shooter, either. The shooter leaned over the robber, retrieved the fake gun from where it had fallen and, upon seeing it was a fake plastic gun, threw it against a wall and broke it—not exactly a calm display of mindset. He then took the money back from the robber, put it on one of the tables and told the patrons to take their money back. The shooter then leaves, and as he walked by the robber, threw his coffee cup down upon the now likely deceased robber.

    Remember the adage “flight equals guilt?” It looks bad; a reasonable person wouldn’t likely have driven away from the scene.

    According to news reports, the shooter will be facing a grand jury, to determine if criminal charges will be brought against him. The outcome of that grand jury proceeding will heavily rest upon the local district attorney.  The old law school saying is that a prosecutor could indict a ham sandwich if he so chooses. Here, I believe there is sufficient evidence to push charges against the shooter, but also evidence that weighs toward a justifiable homicide.

    It will be interesting to watch how the Texas taqueria shooting unfolds.

    Editor's Note: This article originally appeared in the 2023 CCW special issue of Gun Digest the Magazine.


    Know Your Rights:

  • Carry Law: What Is A Righteous Shooting?
  • Concealed Carry and the Right to Remain Silent
  • Tips For Communicating With Police After Shootings
  • Concealed Carry: After the Shooting
  • Q&A: Massad Ayoob On Self-Defense In 2020 America
  • Legal Thoughts On Rimfires For Self-Defense

    Rimfires for self-defense can work, but they have certain limitations and you need to have a plan.

    I started teaching armed citizens how and when to use firearms for self-defense back in 1988. One of my first students, Patricia Newman (not her actual name), was one of my first to use a gun to save her life. She had been singled out for a brutal rape, with her rapist (in her apartment) raping and sodomizing her over the course of several hours. He didn’t need a weapon to threaten her; he used his hands to choke her repeatedly.

    At one point in the evening, she was able to convince him that she needed to use the bathroom, which had two doors, one to the living room (where the attacks occurred) and one to the bedroom, where she kept her Smith & Wesson Kit Gun (.22 rimfire Mod. 34). She was able to get her gun, and when her rapist realized that she had gone into the bedroom, he followed her, and met her in the bathroom, where she shot him repeatedly with the kit gun. He then left the apartment, stumbled down the hallway, knocking on doors and yelling for assistance, at which time he then passed out and died. She had shot him five times in the chest with .22 hollow points.

    Rimfire-For-Self-Defense

    Learning From Tragedy

    A lot can be learned from this incident. First, why was she using a .22 LR? For a couple of reasons. One was that she was initially trained as a new shooter with a .22 LR revolver. She was comfortable with the gun and, being petite, could handle the .22 LR recoil very easily. Secondly, she wasn’t wealthy, so she had that one gun for both practice and home defense.

    Another lesson has to do with the aftermath issues. She told the police when they were investigating, “He raped me five times, so I shot him five times.” That quote made it into the story the newspaper ran a few days later. As it turned out, she didn’t face any criminal or civil legal repercussions, but you’d be advised to choose your words carefully, if you talk to the police after an incident.

    Because of the injuries she suffered during the attack, she spent several days in the hospital. She called me from the hospital one evening (my business phone was also my personal phone) and related the story. She asked if she could borrow a gun, as the police had confiscated hers while the investigation was being conducted. I told her to come visit me when she was released from the hospital. When she did, I loaned her a Smith & Wesson .38 Special.

    She kept the gun for several weeks, as she had repeatedly called the police to ascertain the status of the investigation and to get her own gun back, but the detective wasn’t returning her calls. She eventually called me again because she had convinced herself that she was going to be arrested since the detective wouldn’t call her back when she left messages.

    So, I did what every well-meaning firearms instructor would do—I got an attorney involved. Another student of mine was an attorney, and I called him and asked if he’d intercede on her behalf. He agreed. One phone call from the attorney and the detective called her back, apologizing for not returning her calls and letting her know that there were no charges to be brought, and she could come pick up her gun. It turns out he had been on vacation for a while, and that was his excuse. OK, I guess.

    Key Takeaways

    This story illustrates the primary legal issue in using rimfires for self-defense, that being lack of instant stopping power and the likely need to shoot multiple times, if at all.

    Federal Punch 22 ammo

    No one wants to get shot, even with a .22 LR. That being said, if a person chooses to employ a .22 LR, they need to work out some issues ahead of time. First, they need to develop command presence, so they can effectively communicate with the criminal suspect that if they’re going to continue their criminal activity, they’re likely to be shot. Most reputable schools can teach you this, and before you sign up for a class, you need to make sure the curriculum covers taking criminal suspects at gunpoint. And once you learn how, you need to practice.

    Second, you should use a “serious” handgun. Handguns that come to mind are Ruger and Smith & Wesson revolvers, and medium-sized semi-automatics, like the Ruger series of semi-autos. The reason for this recommendation is two-fold. First, for the most part, doctrine across the United States amongst the instructor cadre is that if you use a .22 LR, shoot for the head. And, you must hit the soft parts of the head (eyes and temple area). You need to get that small bullet inside the cranium where it can do its job disrupting the central nervous system. Having to wait for the person to collapse from internal bleeding isn’t likely a successful strategy, if he’s bent on killing you. Patricia was lucky.

    Also important is the psychological factor when facing a criminal suspect. If the person cannot even see the gun in your hand, they’ll likely not be impressed. But a stainless or blued gun, which looks like a .357 Mag. or 9mm, might just stop them dead in their tracks without a shot being fired. If I were to recommend one .22 for self-defense, above all others, it’d be the Glock 44. A .22 rimfire that’s the size of a Glock 9mm. And it’s superbly easy to shoot. It has replaced our Ruger Mark 2’s in our training for new gun owners.

    Also, look into the .22 Magnum, if you want a gun that doesn’t recoil much but still has a large bark. Rock Island Armory has recently come out with a .22 magnum 1911-style pistol, which should be good for 1911 aficionados (like me). I was a big fan of the AMT .22 Mag., which while not currently made, suitable used ones are around for good prices. And, they fit nicely in Browning Hi-Power holsters. There are also .22 Mag. revolvers. Do your homework.

    The .22 Magnum offers a better bullet at higher velocity, but at more cost and noise. (Recoil is still pretty minimal.)
    The .22 Magnum offers a better bullet at higher velocity, but at more cost and noise. (Recoil is still pretty minimal.)

    With the likelihood of needing to shoot for the head, if you use a .22 for self-defense, you’ll need to be able to articulate exactly why you took what most would call “a killing shot.” You had better be able to explain why you targeted the head (not difficult, but you better think it through ahead of time).

    That’s it for the legalities of using a .22 for self-defense. While certainly justifiable, it comes with limitations.

    Editor's Note: This article originally appeared in the 2021 CCW special issue of Gun Digest the Magazine.


    More On Rimfires For Self-Defense

    Shooting Fleeing Felons

    When is a private citizen within their rights to use deadly force to stop a fleeing felon?

    On February 20, 2021, Joshua Williams entered the Jefferson Gun Outlet, a combination gun shop and indoor shooting range. He was visibly armed with a pistol and extended magazine, according to surveillance camera footage released by the Jefferson County Parish (Louisiana) Sheriff’s Department. When asked by store employees to go back outside and unload the pistol (as was store policy), Williams moved to the door, fired one shot outside the store, and then turned the gun into the store and shot and killed 59-year-old Veronica Billiot, a store customer.

    Williams then left the store for a moment, but quickly re-entered and shot and killed a store employee, 47-year-old Noah Fischbach. He then left the store again, and at that time several store employees confronted Williams and, engaging in a shootout with the suspected murderer, killed him. Two of those store employees were injured in the final gunfight.

    To finish out the custom Glock project of the big 10mm G40 MOS, the author had a Match Target barrel installed by Bar-Sto Precision Machine. It proved to be a wise choice, with improved accuracy and the versatility to reload 10mm ammo.

    Where Are The Lines Drawn?

    This shooting perfectly illustrates the issues surrounding when a private citizen is within his rights to use deadly force to stop a fleeing felon.

    First, there must’ve been a heinous felony involved. There’s little that would qualify quicker as a heinous felony than a killing spree of innocent persons. In this case, if you witnessed the initial shooting, you knew for sure this was an evil person killing innocents. Just about all active shooter incidents that were interdicted by armed citizens fall into this category.

    Secondly, the heinous felony must have been witnessed by you, or you must have a reasonable belief that the subject had just committed that heinous felony. Whether or not the remaining store employees actually saw the first two shootings, they certainly had a reasonable belief that the subject escaping had done the shooting. But one cannot take the word of a third person, they must develop their own facts to make this assessment. Even if a police officer yells at you to “shoot him,” don’t shoot based only on his command.

    A third criteria would be that the escape of the felon must be open ended, meaning it’s unlikely he’d immediately be captured if not confronted (and, in this case, killed). And that standard of knowledge would need to be to the standard of the reasonable and prudent person. Would a reasonable and prudent person believe he was going to escape without capture?

    Additionally, you must believe (again to that standard of a reasonable and prudent person) that if he was to escape, additional innocent lives would be endangered. Perhaps this point would’ve been a little more difficult to reach, but in this day and age of active shooters and witnessing an active shooter event unfold before your eyes, this belief would likely be reasonable on its surface. The history of the actions of random killers is they keep killing when confronted and ultimately killed.

    Lastly, no reasonable alternative to using deadly force to capture/apprehend him must exist.


    Know Your Rights:


    The Fine Print

    As a firearms trainer for more than 30 years, I don’t know how many times I’ve been asked about shooting fleeing felons, typically under the example of someone breaking into your house or car and when confronted, the felon runs. “Can I shoot him to stop him from getting away?” Well, no, you cannot under that example.

    “OK, how about if someone sticks a gun in your face and demands your money and car keys?” You comply and when he turns to leave, you draw and blast him. This would be considered a “violent felony,” but it wouldn’t fall into the realm of a heinous felony. A heinous felony most certainly involves bloodshed, whether that be by gun, knife or some other weapon. The mere threat of bloodshed doesn’t make the grade.

    Now, that doesn’t mean you must simply let the armed robber get away with your money and your car keys. Pursuing and confronting him (a citizen’s arrest) is certainly within your rights as an American citizen. If you do that and he again threatens deadly violence against you, then a classic armed confrontation would likely ensue. Can you be assured of winning that confrontation? I’d say those odds are about 50/50—not the kind of odds I want to bet my life on.

    But if I have witnessed that heinous felony as described above, and I can stop the killer from leaving and endangering others’ lives and I can stop him without endangering other’s lives, I might just intervene. I hope I never have to make that decision.

    Editor's Note: This article originally appeared in the May 2021 issue of Gun Digest the Magazine.

    The Defense Of Others

    Knowing when to intervene with deadly force and when to not.

    On May 15, 2021, a Fort Smith, Arkansas, man entered his apartment, procured a loaded hunting rifle and shot a man dead in front of the apartment building. The unnamed shooter (as of this writing) will likely not face criminal charges. Why? Because the shooting was done in defense of his neighbors; the individual who was shot was in the process of trying to kill other apartment dwellers after already killing one person.

    Two legal doctrines allow a person to use force in self-defense. The first is when you reasonably believe the lives of others are in immediate danger of death or great bodily harm. This is what allowed the armed citizen to legally kill the perpetrator in the above example. The danger was imminent, and the shooter had amassed the facts and applied these facts, under the circumstances he was in, to legally shoot the individual.

    This construct is also necessary with the second legal situation—that being to not only have a reasonable belief innocent lives are being endangered, but also you must be able to “stand in the shoes” of the individual or individuals one was protecting.

    Self-Defense-Insurance-1

    Stand In The Shoes

    Let’s say you turn the corner to go into your local convenience store and see a subject on the ground, being kicked in the head and screamed at by another. Thinking that a severe, life-threatening beating was occurring, you pull your gun and shoot the person who was assaulting the “victim” on the ground.

    Stopping another from suffering this kind of life-threatening assault would, in most jurisdictions, be deemed a legitimate act of use of force to save the life of another. However, if you were in a jurisdiction where you were required to “stand in the shoes” of the “victim,” you might be guilty of murder.

    In this example, the apparent innocent victim had just robbed the store and was being confronted by someone who saw the robbery and wanted to prevent the robber’s escape but was using excessive force.

    Another example would be if the person you were defending was, in fact, the initial aggressor in the altercation and, unbeknown to you, started the fight. Under these circumstances, you likely won’t get a self-defense jury instruction and be convicted of manslaughter.

    So, how do you know?

    Well … you don’t.

    Think It Through

    Let’s go over the thinking processes one should employ when possibly inserting oneself in a situation where you’d be defending another—not yourself.

    If the person you’re defending is known to you, perhaps has been accompanied by you before the incident and you know they’re not a felon or first aggressor, then you should be on safe ground to defend them.

    An example of this is if you’d been out shopping with your significant other, and as you return the shopping cart to the store, your significant other has been accosted and is either being robbed at knife- or gun-point … or being forced into another car. In this example, you’d be safe to stand in the shoes of the significant other and have reasonable grounds to believe your significant other is in grave, imminent danger. It could also equally apply to a child of yours.

    But what if the person or persons you’re defending aren’t known to you? If that’s the case, you really need to have viewed the run-up, to the point where deadly force is warranted.

    For example: If you walk into a convenience store and interrupt a robbery in progress, how do you know that, moments before, the clerk hadn’t drawn his own gun or disarmed the alleged suspect? Unless you personally know the clerk, you don’t. You’d be better off getting behind some cover, or at least concealment, and watch. After all, most robberies end without bloodshed, so playing the odds isn’t a bad tactic. If the robbery turns to you, though, then it’s your life in danger and a different analysis is warranted.

    If you had been shopping and saw the beginning of the robbery (knowing the robber was in fact the robber), how do you know the gunman doesn’t have a partner watching for anyone like you to get involved?

    In the case of a robbery in a store, bank or otherwise, my personal tactic is to get behind cover or leave. Unless I’ve seen bloodshed, then and only then am I likely to get involved. You should be making these decisions ahead of time. Being in the middle of a life-threatening event is a bad time to be making decisions that should’ve been made long before. You’ve decided to arm yourself; with that decision comes the responsibility to not go blindly through life without having studied, trained and practiced until the decision making in circumstances like these won’t be the major issue.

    Editor's Note: This article originally appeared in the August 2021 issue of Gun Digest the Magazine.


    Know Your Rights:

    Stop A Crime In Progress … Think Again Armed Citizen

    While best intentions might spur an armed citizen into action, the potential legal ramifications of trying to stop a crime in progress should give the good Samaritan pause.

    On January 30 of this year, 45-year-old Nya Reyes was arrested for aggravated assault when (according to news reports) she allegedly shot at a fleeing shoplifter, missing the shoplifter and hitting an innocent bystander. This occurred outside an Ace Hardware store, in Phoenix, Arizona. Fortunately, the bystander, an Ace Hardware employee who was chasing the shoplifter at the time, wasn’t seriously wounded, so instead of being arrested for murder or manslaughter, she was only arrested for aggravated assault.

    While good intentions might spur an armed citizen into action, intervening in a crime in progress could very well end in legal troubles for the good Samaritan.
    While good intentions might spur an armed citizen into action, intervening in a crime in progress could very well end in legal troubles for the good Samaritan.

    As the outcome of the case is still pending and we don’t know all the facts, an examination of her specific actions wouldn’t be prudent, but we should look at the legal ramifications of trying to stop a crime in progress.


    Know Your Rights:


    Deadly Force And A Crime In Progress

    Generally speaking, the use of deadly force (shooting at another) is only justified to protect innocent life. A person must possess sufficient facts that would lead a reasonable person to believe that absent the action by the shooter, an innocent life would be endangered. When I say “innocent life,” that means anyone the shooter might be protecting couldn’t have started the altercation, or otherwise participated in a criminal act.

    While there’s sympathy for the person who loses a valuable object to a thief, American courts universally don’t condone stopping that theft with deadly force. The anomalous exception is the State of Texas, which allows the use of deadly force to stop property crimes under a very narrow set of circumstances. The Texas reader should get with an attorney to go through this facet of Texas law.

    Otherwise, just because someone cannot use deadly force to stop an escaping thief, it doesn’t mean they have to simply say sayonara to their property.

    Again, depending on the jurisdiction but much more likely justified, is the right to make a “citizens’ arrest.” And the law gives that person the ability to use “reasonable force” when making the arrest, which in practical terms means holding the person for the police. When a person confronts a burglar in their home, they can hold the suspect at gunpoint awaiting the police. In public, the person might (check your local laws) be able to draw their gun to request compliance (as cops do in many circumstances) but if the person flees, they cannot shoot.

    What they could do is use non-deadly force to stop the escape, but only the amount of force a jury would conclude was reasonable? Confused yet? I know, it’s complicated.

    This is why most police recommend simply allowing the individual to leave and becoming the best witness for the police.

    Personal Perspective On Intervention
    Which brings me to an incident that happened to me a few years ago, and which was remarkably similar to the incident in question. I was leaving a large hardware/lumber store in my city, when I heard a screech of tires behind me. I turned and saw a person run from the store with a hand tool in a case, throw the tool in the back of the pickup, climb in the truck and speed off.

    I assumed the store would be contacting the police concerning the crime, so I jumped in my truck to follow and track the thieves, calling into the police. As the guys quickly left me in the dust (I wasn’t going to break the law to follow), I then decided to just head to the police department and give them a good description of the truck. Upon making the report to police, I found the store didn’t even bother to report the theft! This raises the question, is it worth getting involved in a third-party theft?

    One place where you might want to get involved in attempting to stop an escaping criminal, even to the possibility of using deadly force, is if that criminal killed someone in front of your eyes and, without your intervention, he would likely escape. Of course, if he were close enough for you to shoot him, you would likely be able to reasonably claim that your life was also in danger, as would be the case inside a store during an armed robbery and then witnessing the murder of the clerk.

    Another scenario would be if you came upon an active shooter incident, where you see the individual killing innocents. While the shooting might be difficult for someone of basic skill using one of the small compact concealed carry guns, a person with advanced skill and a full-sized handgun would have a reasonably likely chance of stopping the escape of the mass killer and/or stopping the killing rampage.

    A last incident where intervening with deadly force to protect a third party would be if you happened to come across a uniformed police officer struggling with more people assaulting that police officer. The history of police being assaulted is rife with examples of the officer being disarmed and killed with their own weapon.

    When I pass a law enforcement officer on a roadside traffic stop, I routinely slow way down to get my eyes on the cop, making sure he or she is OK. Of course, if you do the same and the cop is in a life-threatening encounter, be sure to ask the police officer if he or she needs assistance before you draw your gun. Otherwise, you might just be mistaken for another armed criminal at the very moment the cop wins the fight with the first one. You can imagine what could happen.

    Touchy stuff. The more skill you have with your firearm and the more training you have in the legalities of use of force, the easier these decisions would be. But in all cases, the use of deadly force to stop a shoplifting in progress wouldn’t be a wise move.

    Editor's Note: This article originally appeared in the April 2021 issue of Gun Digest the Magazine.

    Knife Vs Gun: When Are You Justified To Shoot?

    Knife vs Gun — when is the armed citizen on solid legal footing when using lethal force against an attacker with a blade weapon.

    On October 26, 2020, Philadelphia Police shot and killed a man with a knife, 27-year-old Walter Wallace. YouTube videos show the shooting, and to this observer, the two police officers who fired a total of 10 shots were likely justified in the shooting.

    Have you considered under what circumstances you’d shoot someone threatening you with a knife?

    What Is The 21-Foot Rule?

    Just about everyone who has ever attended a training course on lawful use of force has heard of the Tueller drill, referred in some circles as the 21-foot rule.

    "knife-attackEdged

    To bring everyone up to speed, in 1983, Salt Lake Police Sgt. Dennis Tueller, a firearms instructor for his police department, one day timed his officers on how quickly they could draw and hit a man-sized target with two shots from their service revolvers. The distance was 7 yards, and the times averaged 1.5 seconds.

    He then timed the officers on how quickly they could run the same 7 yards, and found it also averaged 1.5 seconds. The conclusion was that an officer should have their gun drawn when facing a knife-wielding suspect if that suspect was within 21 feet, or the officer would have no chance to draw and get shots off before being stabbed. This fact does not, though, automatically guarantee the legal system will validate your shooting of someone threatening with a knife from less than 7 yards.

    What The Jury Will Consider

    All the facts and circumstances surrounding the incident will need to be analyzed, with the results of that analysis being filtered through the reasonable person doctrine. What would a reasonable and prudent person have done in the same circumstances, knowing what you knew at the time?

    Did the person display obvious overt threatening acts? Were they verbally threatening to use the knife against you? Was there a past history of violence on the part of the suspect? Was there any other criminal activity being engaged in by the suspect? For example, a person who pulls a knife on you outside the convenience store and states he will kill you if you don’t give him your money, is a different threat than someone who simply is carrying a knife open, exposed and acting erratically.

    I worked on a case where an individual (according to the defendant) had previously threatened the use of a K-bar knife, and then moments later, threatened him again and started toward the defendant. The defendant shot and killed the attacker, but the attacker never drew the knife—just had it in its sheath on his hip. There were other extenuating circumstances, which ultimately led the jury to convict (like the drunkenness of the defendant and the fact he fled the scene) and worked against his credibility. My analysis of the scene and testimony in court wasn’t enough to overcome these facts, although I do believe he was justified in taking the suspect’s life.

    Knife Vs Gun: Is There An Advantage?

    There’s still a tendency for some to discount a knife as being as dangerous as a gun. The old adage that a gun is more lethal than a knife is simply wrong, as a well-aimed and executed knife cut can disable and kill as quick or quicker than a similar wound inflicted with a gun. The phrase in the reasonable person doctrine “knowing what you knew at the time” will be extremely important when you’re looking into the jury box and trying to convince them you had a reasonable belief your life was in danger. That’s where documented knowledge and training will be your ace in the hole.

    When I was a young rookie police officer, our tactical and legal training surrounding lethal threats didn’t sufficiently cover knife lethality, in my opinion. It was generally accepted that the officer, if he or she had a baton, should use that baton to disarm the individual with the knife. It was only later, after Tueller’s earlier work and the production and distribution of the 1988 officer survival video Surviving Edged Weapons by Calibre Press, that the current training in knife lethality became widespread. If you carry a gun and haven’t seen this video, you really need to see it.

    Training As A Legal Aid

    Additionally, receiving hands-on, documented training from a reputable instructor or school might be invaluable if you ever have to justify your actions in court. Under most circumstances, your instructor could be introduced to validate the concepts and training he taught you.

    The concept of documented training is what allows most police officers who use deadly force against knife-wielding suspects to avoid prosecution or civil liability. And the same documented training could very well be used by your attorney to convince the prosecutor’s office not to press charges against you, even if the suspect “only had a knife.”

    Editor's Note: This article originally appeared in the March 2021 issue of Gun Digest the Magazine.


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