Don West and Steve Moses join Shawn Vincent to talk about provocation: when a defender entices or baits a potential attacker to “trow the first punch” with the hope of justifying self-defense. Provocation can destroy a self-defense claim, as we explore in three high-profle cases.
Transcript:
Shawn Vincent:
All right, gents. So in our last podcast, our last lesson in the 36 Lessons for Armed Defenders, we were talking about the idea of being the first aggressor. Right, Don? And that means legally that if you’ve committed the first crime, you have done the first physical act of violence or a credible threat of violence, which qualifies as assault under the law. You’ve created the first act of aggression, and that could invalidate your self-defense claim. I’m on good legal grounds so far, right?
Don West:
Exactly. Yep.
Shawn Vincent:
Yeah. All right. But as we explored a few cases, we saw how messy the prelude to the use of force can be. Very often, unless it’s an overt, violent criminal act, a lot of the self-defense cases we see start with some sort of verbal altercation, some sort of conflict between two people that escalates to the point where violence is introduced. And the whole idea of the first aggressor is that if you’re the one who introduces that violence first, even if you have reason to fear that the other person has the ability, opportunity, and intent to cause imminent harm or death to you—you might not be legally justified in using deadly force in response to that because essentially you started it physically.
Don West:
Fair enough.
Shawn Vincent:
Right? So there’s the high standard. And then there’s this other weird little caveat in the law in most places, whether it’s explicitly or implicitly there, that you can start it without throwing the first punch per se. You can start it without being legally the first aggressor if you provoke somebody intentionally into escalating the altercation into a physical altercation. You become the provocateur. You’ve baited them into coming at you, perhaps with the intent that you feel that you create a circumstance where you’d be justified and this jerk can get what’s been coming to them.
Don West:
Yeah. I think that’s the way the parts of this play out. The first notion of provocation is that you are enticing, teasing, baiting, provoking someone to do something to you physically. Maybe, as we talked about before, you break that first law of aggression, whether it’s a battery or some sort of physical act that would be considered by the objective person as an act of violence toward you. But you have an ulterior motive because what you’re really trying to do is get them to … What would the expression be? Throw the first punch.
Shawn Vincent:
To “make your day.”
Don West:
Yeah. So that you can then respond. And I think your goal then is to get a shot at them thinking that you’ll then have the high ground and you’ll be able to do what you had wanted to do all along, but you weren’t legally justified to do it because they hadn’t been aggressive toward you. So there’s this little back-and-forth mind game where you bait somebody into taking a swing at you so that you can pummel them. That generates all sorts of other legal issues, of course. But the notion of provocation is that if you do that and it’s evident that was your purpose, then you can void your chance to then claim self-defense if you need to justify why you were physical to them.
Shawn Vincent:
It’s a really nuanced exploration. I think when it comes to … if a prosecutor wanted to prove that a defender had been the first aggressor in a fight, there’s some real physical standards, some real legal standards that they can point to that they could convince a judge that this wasn’t self-defense and the judge might not allow that argument before a jury. Or if they make that argument to a jury, it’s pretty clear to the jury that someone threw the first punch or someone pulled the gun first and qualified as first aggressor. But we were joking on the podcast about first aggressor: when your kids get in a fight, the defense is, “he started it. No, they started it.” It gets really murky when it comes to who was taunting whom in the verbal posturing that happens before it erupts into violence.
Don West:
Agreed. I’ve used this example before, but it may take a listener or a viewer of a certain age to find it. But if one were to look for some Duracell battery commercials on television from, oh my goodness, must be 30 years ago or more now, there was this television actor named Robert Conrad. He was in a show called The Wild West. He was a small guy, but he had this imposing, intimidating demeanor about him. He played a tough, smart guy a lot of times. Well, his Duracell commercials—Duracell battery commercials were … Steve, I don’t know if you remember the name. I’m
Steve Moses:
I’m laughing. I know what you’re talking about.
Don West:
He would put a Duracell battery on his shoulder. He’d have it sit there in the commercial. And his tagline for the commercial in his tough-guy way was, “Go ahead. Knock it off. I dare you.” So to me, that’s textbook provocation. He’s inviting the violence. You know full well, just if you know how he presents himself, that’s the excuse he thinks he needs to go ahead and take care of business.
I think maybe another way of looking at provocation might be an invitation to mutual combat. That’s the idea of, “Go ahead. Try me. You want a little of this?” The idea being that if two people agree to physically engage each other, then neither of them is committing a crime. Neither the winner nor the loser. And every athletic event, every boxing match, MMA fight is sort of a mutual combat consent. And on top of that, the legal concept of assumption of the risk. You can’t very well challenge somebody to fight, let them know you’re more than willing to mix it up and then complain if you get a bloody nose.
Shawn Vincent:
But we know that dueling’s not legal and hasn’t been for a long time. You know when that really happens is between people who know each other and are kind of friends after a football game or a night of drinking gets a little funny and a couple buddies fight, and someone gets a bloody nose, and nobody gets arrested. That’s one thing. It’s a different thing when you’re dealing with a stranger or someone new that you’ve met, and this sort of mutual combat that you’re talking about erupts. There’s a mindset that gets blurred there. I think it’s unreasonable in civil society to think that someone’s going around looking to pick fights. But I think you’ll agree that there’s one circumstance that we see over and over again where otherwise rational, law-abiding citizens taunt each other into this type of confrontation that you’re talking about, Don. Am I right?
Don West:
I think you’re exactly right because we see this every day in some degree or another. And I assume you’re talking about the exchange of words and gestures in the typical road rage scenario.
Shawn Vincent:
That’s what I’m talking about. You teed us up at the end of our last podcast to talk about this, and now’s the chance. So yeah, you’ve told me recently that when we talked about warning armed defenders not to get emotionally hijacked, that road rage is—as a criminal defense attorney dealing with otherwise good people—is the bane of your existence. So here’s your platform, Don. Go off on road rage. Tell me something about it that you want people to hear.
Don West:
I think maybe, first and foremost, everyone, I think, is capable of reacting in that context. I’ve met the most calm, professional people who just lose their shit—I guess is my first and only expletive of the podcast—when they get into a tense road situation. Somebody cuts them off, and they are absolutely convinced that that idiot did it on purpose, trying to make them wreck. And that what they need to do is teach that guy a lesson. Show him that he was wrong, perhaps for the purposes of getting an apology. I really don’t know because it’s so out there and so emotionally disjointed that I don’t think anybody knows what they’re trying to accomplish other than they want to communicate to them that this behavior is unacceptable, and you are offended, and you are right to start with. So talk about the quintessential emotional hijack.
Now, from this standpoint though, when we’re talking about first aggressor, we’re really talking about a much more narrow set of circumstances. We’re not really talking about someone who cut someone off or who in response, does a brake check or that sort of thing, are we? That’s the driving part of it. When we talk about first aggressor or provocation, it’s a much more narrow legal framework than the kinds of facts that we’re talking about there.
Sure. It’s an interesting context though, because both people in a road rage situation are in possession of deadly weapons: the car. So they have the ability, should they choose to, to use it as a weapon anytime they want, typically. The fact that very few people do, and it’s extraordinary when someone does. What we really talk about is bad driving and offensive behavior that results in somebody pulling a gun and exercising incredibly poor judgment, typically in the way they want to solve the problem. And I think you see initial aggressor stuff there. I think you see provocation stuff there, not necessarily within the limit that we’re talking about here, but it leads to it. It gets to the point that people are chasing each other mile after mile, one in front, one in back, and then pretty soon, side by side with the one driver with the open passenger window and the other driver with the open driver window. And they’re looking across at each other, pointing guns, firing guns, pepper spray. I’ve seen that where one driver attempted to pepper spray the other driver from across the seat. It’s just amazing how people, I think they feel angry, but also helpless. They don’t know what to do. They must not have listened to Steve enough to know that you don’t have to engage. There’s no requirement that you do anything other than stop the car and get away. How many cases do we see where both people pull off the road, get out of their cars, and confront each other?
Shawn Vincent:
Well, somebody invited them, and somebody accepted, and they were both wrong. Steve, I see you shaking your head. I’m curious, people who aren’t necessarily trained or understand the legal consequences of self-defense might feel emboldened by carrying to pursue some sort of road rage or get caught up in this thing than somebody who wasn’t carrying.
Steve Moses:
I think that’s possible. Now by the same token, I’ve worked in a number of companies over my career, and I’ve seen some of the worst road ragers were small, little, unassuming, quiet women that you would never think would do that. And then when you do see it, it’s like a huge shock. But one of the things that I think we often think of road rage as being this ongoing response back and forth between two people, when in many instances, what it is, is that one person elicited just a, oh, that’s sort of a bitch response that the other person recognized and then the fight was on. We literally have to make that decision in advance that, oh yeah, I’m not going to get engaged in this, but by the same token, I’m not going to give that guy any reason to know what I really think of him. And I have to do this on frequent occasions when somebody just does something like that as I just go, ah, just eat it. I’m just going to eat it and let it pass. But it’s just some people are so irrational. It is just bizarre. And I have seen some very, very strange antics take place between two motorists. And what really sucks is that it’s a one-way road situation. That person is after you, and you cannot get away from them.
Shawn Vincent:
Yeah. Well, that’s the fear.
Steve Moses:
Yeah. The best thing to do is go ahead and make that decision way in advance that I’m not going to give that person the reaction that they want.
Don West:
So can we say that, in the context of first aggressor, which we’ve sort of defined as who sort of breaks the first law of aggression, makes the first threat words coupled with some physical gesture or physical act of some sort, reckless driving typically doesn’t fill that. That doesn’t make them the first aggressor that justifies you using force against them.
Shawn Vincent:
You might have felt physically threatened because of the nature that cars could be deadly weapons if they’re used the right way and that people get hurt and maimed and killed all the time with automobiles. So you can feel threatened, but just being a bad driver doesn’t constitute an active physical threat.
Don West:
Exposing you to harm, being a lousy driver, grossly negligent even. That’s different than someone intentionally threatening you or doing something on purpose to put you in jeopardy. The person that’s trying to run you off the road is committing a violent act with the intent or the high likelihood of causing you harm. And you need to defend yourself against that regardless of what it takes. We know just from our own experience, we’re better off withdrawing from that than trying to win that fight by pushing them off the road or by shooting them if there’s any other course. But I think the notion of people say, “Well, he cut me off. That’s the, he started it because he said I was stupid or he started it because he…” Whatever. I mean, there’s a hundred different reasons.
Shawn Vincent:
And none of it matters at the end. No one can even remember.
Don West:
But the big problem I see sometimes is in these road rage cases, and I’m talking to someone who was engaged in this back and forth, sometimes for miles at a time, when it finally culminates at some point of a gun being displayed or something that is a true assault type crime, if not done in self-defense, then that person has to answer the questions of, “Well, when you followed him for five miles, what part of that would you consider to be self-defense?”
Shawn Vincent:
Yeah. So let’s talk about that case. I think the Ronald Gasser case that we previewed a little bit when we talked about “don’t get emotionally hijacked” is sort of our textbook road rage case. So here’s the deal: we’re in a suburb of New Orleans, and there’s a guy named Joe McKnight. He’s a local football hero and played for the Jets for a time. Gasser doesn’t know this. He’s just some guy driving an SUV recklessly on this road. By all accounts, Joe McKnight cuts Gasser off, and Gasser doesn’t like it and decides to retaliate in some way. Maybe to speed in front of him and cut him off. I don’t know exactly what happened, but what we do know is that a collection of surveillance cameras from businesses and traffic monitoring devices and other things for five miles captures these guys trying to outdo each other and one up each other in what authorities call a “tit-for-tat” road rage incident that literally stretched on, like you illustrated they’be done, for five miles until they finally arrive at this intersection and get boxed in at a red light.
And so what happens here? The windows are down. Words are exchanged. Joe McKnight gets out of his car and walks over to the passenger side window of Gasser’s vehicle and leans in and, by all accounts, had his hands, his forearms on the frame of the window that’s opened, hands dangling in. Gasser felt physically threatened at that point. He claims he had, here’s Steve once again, pulled his firearm out of a bag about a mile or so back, perhaps with the thought that he might need it. So it was accessible. He pulls it, and he shoots three times. One shot proves fatal. Joe McKnight dies. And I’m going to throw this in here for our conversation about provocation. And that is that one witness said something to the effect of, “No, you get out and come here.” And that was Ronald Gasser saying that. So what it allowed the prosecutors to do at his trial was suggest that Gasser invited McKnight to get out of his car and come over to his car.
And when he accepted that invitation, Gasser then said that he felt physically threatened and used that opportunity to give McKnight what he had come in and shoot him dead. That was the argument. They actually called it setting a trap. And once McKnight leaned over through the windowsill or the window of the car, the trap was sprung, they said.
Don West:
I’m not too sure that’s very far off because I think that’s what classic provocation is: setting a trap. I hadn’t heard it described as that before, but that’s what you’re doing is you’re enticing or baiting, encouraging someone to do something with the idea that you’ll be the justified one when or if something happens. And that’s exactly the way this played out. Whether all of that was in Gasser’s mind when he was taunting or baiting McKnight, I guess we won’t know. But I know that at the end of the day, the jury didn’t like Gasser’s explanation.
Shawn Vincent:
Right. Well, yeah, they did not. And there were some other things that complicated the case. But Steve, just when you look at this case, what do you see in this behavior?
Steve Moses:
Well, I see that unfortunate scenario where two jerks actually ran into each other with no give on either side. And it’s not surprising to me that this was the outcome. I think we’ve talked about some other cases when people just completely forget that, legality aside, as to whether or not what I did is lawful or what I’m about to do is lawful. It’s just the high probability that you or somebody else is going to get seriously injured or killed. It’s going to change everything. And so they focus so much of, “Can I get away with this?” And one of the reasons that it’s considered deadly force is because people often get killed or seriously injured. So to me, it’s amazing to me that one person just didn’t break it off, pull into a public area, go to a fire department, police station, emergency room, something like that, and get out of there.
Shawn Vincent:
You’re saying that, Steve, I’m kind of thinking of provocation as an invitation to escalate. And if that hearsay or that witness is accurate and said, “No, you get out.” That suggests that maybe McKnight said, “Hey, come over here.” Maybe he had the first invitation, and then Gassar said, “No, you come over here.” They’re reciprocal invitations. But throughout that entire road rage incident, each act of escalation was an invitation to take it up a notch for the other person. And so if you were an armed offender and you’re giving invitations for escalation, even non-verbally or passive-aggressively, that’s an act of provocation. And the other person might respond with their own act of provocation. So it sort of ratchets it up. I think this is why, Don, we don’t see … I can’t think of a single case that we’ve been involved in or we’ve researched where somebody was disallowed to claim self-defense because of provocation, but that the evidence of their provocation became devastating to them when they got to trial.
Don West:
Yeah. I think that’s the way it’s almost always going to play out: it would be very difficult, I think, for a judge to deny an instruction on self-defense by making a determination that because there was provocation, that they won’t even instruct the jury on self-defense. I can’t imagine that a judge would do that unless the evidence was so clear they felt confident that no one at the appellate level would disagree. What happens exactly is what you’ve described. And that is, I think, provocation and initial aggressor are part of the jury instructions that require a finding of fact by the jury. So the jury looks at the law on provocation and first aggressor and applies it to the facts of this case. And if they conclude that either the accused provoked the violence or was the first aggressor, then they don’t really have to go anywhere else in the case. It’s essentially over as to self-defense.
Shawn Vincent:
Let’s talk about a case where we talk about the idea of setting a trap. Oh, go ahead, Steve.
Steve Moses:
Well, one of the things, too, is maybe it was not necessarily his intent to spring a trap. It may not have been his intent at all to lure that guy up there and shoot him. It may very well be as, okay, well no, you come here. And it’s very much like that earlier case when you had the two drivers, and one driver points a gun at the other person who then gets out of the car with a crowbar, and this is what happened. And so I think that’s something that we need to take into consideration is that the words that we say, although our intent may not have been to be provocative or to invite mutual combat, that is the way they were taken. And it certainly didn’t work well for this guy, however it was meant.
Shawn Vincent:
I don’t know if either of you play chess, but if you’ve ever played chess, sometimes you’ll get in a situation where you’ve got one piece covering another piece, then someone backs that piece up. And then the whole board gets positioned around … if someone takes the one piece or someone takes the other piece, there’s going to be this whole cascade of movements. And at the end, about half the board will be cleared out. And you have to try to guess in advance: are you going to have the advantage when that’s all done? And it never goes the way you think it’s going to. And Steve, you talk about that as when you accept an invitation or issue an invitation to escalate, if you’re an armed offender and they might be an armed defender too, then that means you’re opening up the possibility that it cascades out of control into the use of deadly force. And you have to know that in advance before you issue or accept that invitation.
Steve Moses:
It makes me think of some of those Coen Brothers movies where somebody does something, does not anticipate what the results are, and then it just spirals off, and nobody wins.
Shawn Vincent:
So I think it’s fair to say, and I believe this, that Ronald Gasser did not intend to lure Joe McKnight to his car to murder him. He wanted to have some words. He was going to one-up him or whatever. He didn’t intend to shoot him. I believe that. I think other people do too because he’s actually served eight years and is out now and living his life again. But let’s talk about a case where I think the opposite’s true. This is Marcus Kaarma. He’s in Missoula, Montana. He and his common-law wife had been victims of burglary. Essentially, what happened is they were smokers, and sometimes weed was what they were smoking, and they would do it in their garage and they left their garage … it was one of those garages that kind of teeters up and down instead of rolling up and down. And so they kind of left it partially open at night for air so they could go out there and smoke. But they had left some valuables and some paraphernalia and things and some drugs there. And one night somebody sneaks into the garage and cleans them out of some valuables. They report it. The police don’t find these people, certainly not right away. But Marcus Karma feels personally violated, and he’s telling everybody in the neighborhood that he’s going to find these guys. And here’s what happens—and I think this is pretty much agreed upon as fact: He took one of his wife’s old purses that she doesn’t use anymore, stuffed it with some expired credit cards and some other things and set it on the trunk of the car in a garage, left the door intentionally opened, and then positioned a baby monitor, a video baby monitor so they could see the garage, mostly shadows at night.
And then he kept a loaded shotgun leaning on the wall next to his front door. And so what happens a little after midnight one night, there’s a foreign exchange student from Germany whose friends had taught him about garage hopping, where you can sneak into other people’s garages if they leave them open and steal beer from their garage fridges. By all accounts, that’s what this guy was doing. All Kaarma knows is that he’s hoping that this burglar comes back so he can get them. He sees the shadow on the baby monitor. He says it’s on. He grabs the shotgun. He goes out the front door, around to the front of the open garage. And he fires, I believe, three times into the darkened garage and strikes and kills this 16-year-old teenager. I think he tried to claim later that he heard some metal dragging and that he felt threatened.
But all of his statements before and after, even in jail on a phone call—they recorded him saying the neighborhood should be grateful for me for solving the burglary problem. It was hard to make any argument that he did not stage a circumstance, hoping that someone would come take the bait so that he would feel justified in defending his home with deadly force. That’s not legal, huh, Don?
Don West:
That’s not legal. No. You can certainly, I suppose, relate to his frustration and his anger at feeling like he and his family are victims. No one likes the idea, even if it’s not particularly valuable stuff that’s being stolen. No one likes the idea of the sanctity of their home. Although in this case, it wasn’t the guy breaking into the bedroom and stealing the jewelry from the nightstand. It was a separate garage, not detached as I understand it, but closed off from the rest of the house. And it appeared to be that sort of thing, the beer fridge stuff or the little stuff you can grab and carry away. I don’t even remember, Shawn, maybe you do, whether this kid that was killed, this foreign exchange student, was suspected even in any of the other thefts that had taken place.
Shawn Vincent:
He was not. And in fact, they found the person who had committed the other thefts, and that person actually testified at Markus Kaarma’s trial. So he got the wrong guy. Which would not have been legal either, by the way. But not only did he commit that crime, but he got the wrong one for it.
Don West:
Well, we do know from self-defense law about the Castle Doctrine, about it being the highest level of protection of highly defensible property, I guess. How you have to be less certain that the person is there to hurt you if they’re in your living room when you wake up.
Shawn Vincent:
The defending homeowner has way more presumptions, legally on their side, to begin with.
Don West:
A burglary basically means trespassing in someone’s home with the intent to commit another crime. It’s usually theft. And a garage would count. This would have been a burglary had the kid been caught stealing and then prosecuted. It’s a fairly serious crime. Quite a serious crime in fact. So there’s more to it than just the notion that he didn’t like the fact that kids were stealing his stuff, more to it legally. But didn’t he do everything he could ultimately to undermine any possible defense he had by the way he was remorseless, the way he was broadcasting his intent to get these kids? And I think he may even have used “kids” to describe the people that he believed were stealing from him. Never claimed that he felt personally threatened or his family was threatened because people were breaking into his house. It was all the setup to basically get the kids that were stealing his stuff from his garage. And he did that in effect, as you said, set the trap. So no, it didn’t take the jury very long to convict him of murder. And under all those circumstances, I think you said life.
Is that right? So he’s still in prison.
Shawn Vincent:
Yeah. I believe it’s life. (NOTE: It was actually 70 years) And Montana has weird … I think it was “intentional homicide.” It’s some version of what they charged him with in Montana. I’ll get it right for the article.
Don West:
I remember that he shot three or four times. You may have just said this; I don’t remember, but maybe he missed once or twice, but he did hit him twice, including in the upper neck or head, and killed him.
Shawn Vincent:
Yeah. I think honestly, he couldn’t really see who was in there. He was just firing in the direction of where he thought the figure was that he’d seen on the baby monitor. It was dark.
Don West:
What’s the lesson here? We know you can’t do that, but we all also know that’s pretty extreme. People don’t do that.
Shawn Vincent:
Steve, maybe look at it this way too. Armed defenders, especially there’s concealed carriers in the world, but this podcast is also … it’s intentionally called Armed Defenders Dilemma because there are some people who don’t necessarily feel like they want to be concealed carriers out in the world, but they do want a firearm for home protection. And they’re not concealed carriers, but they’re armed defenders. And talk about lessons, Don. I think Steve, if you’ve come to the firearm as your only means for home defense, you’ve missed a whole bunch of other opportunities. And I think the example here is that if this guy intentionally understood how to make his house attractive to a burglar, to lure one in, the opposite side, Steve, is you could do a whole bunch of things to make your house less attractive to a burglar. Don’t you think?
Steve Moses:
Oh, absolutely. And I mean, if you’re concerned about your stuff, well then why don’t you just shut your garage door for one thing? I mean, but to think that, okay, I can leave this open and then be outraged that people come in here. I know technically they couldn’t, but you are making that very attractive to people. And then using that as an excuse to go ahead and terminate somebody else’s life because you want to solve a problem in your neighborhood. That’s a pretty big leap.
Shawn Vincent:
Yeah.
Don West:
Well, and lots of other choices, right, Steve? You could have a video set up. You could record the kid on your baby monitor, if that’s all you had, and give it to the police. Then let them go do their job. Lots of other choices less …
Shawn Vincent:
Be a good witness.
Don West:
Yeah, be a good witness. Obviously though, this was a setup for the purpose of him solving the problem in that very narrow, blindsided way of thinking that. And anyway, this was appropriate.
Steve Moses:
Well, it’s very interesting how many people think that they’re master criminals that are able to come up with schemes like this and accomplish what they want to. And it’s just so obvious to everyone else is that, no, you’re just basically a sociopath.
Shawn Vincent:
Yeah. Yeah. When I was describing that scenario of Markus Kaarma’s whole setup, I was thinking of what you had just said before that, Steven, about this actually sounds like a Coen Brothers film. This is too ridiculous to be true. And on that note, I think that anyone who’s listening to this almost certainly would never consider something like that. The people who come to this podcast are responsible gun owners and want to understand more about what that means. So let’s …
Don West:
So one more thing. It’s been clear and illegal for as long as I’ve been practicing law, maybe not to the extent that Markus Kaarma did this by lying in wait, effectively for his baby monitor to go off, and then shooting this guy multiple times. It’s also against the law to set a trap, a dangerous trap for someone breaking in. So I know of cases where someone might set up a gun or some sort of weapon that’s activated by somebody opening a door, lifting a garage door, and then all of a sudden the crossbow goes off or the shotgun fires.
Shawn Vincent:
Sure.
Don West:
That’s also illegal, by the way. And you’re criminally responsible if someone is injured as a result of that.
Shawn Vincent:
How about glitter bombs, Don? I just learned about glitter bombs for porch pirates today.
Don West:
Well, I’m thinking that if the person you bomb is asthmatic and inhales enough of that stuff, you might be responsible for the medical consequence of it.
Shawn Vincent:
Sounds like a good civil case to me. CCW Safe has an option to cover your civil liability, by the way, I might add, if we’re plugging what we’re doing. But a reminder that the legal consequences are not always just criminal and self-defense. They could be civil as well.
Well, here, lets talk about a less obvious case of provocation. And I’m going to tell … there was a time when I got stranded in the UK during 9-11. And my wife and I were talking about getting married, but not yet engaged at that time. And we were time zones apart. And this is back when I had a cell phone, but it didn’t really work well internationally. I had a calling card, and she was East Coast, and I was on Greenwich Mean Time. And it was difficult to get ahold of each other. But we went through extraordinary lengths to make sure we could talk to each other at the beginning of her day and the end of her day, no matter what, while I was waiting for air traffic to pick back up and I could get back home to see her.
On the other hand, there are people I deal with in business that I have to work something out with them, and I really don’t want to talk to them. And I know that they really don’t want to talk to me. And it could be weeks before we can get that conference call set up to work out the issue. What I’m trying to illustrate here is that when two parties want something to happen, it happens. And when two parties don’t, it doesn’t. And so, shy of absolutely, Markus Kaarma trap-setting provocation. We’re going to go back to Austin, Texas, and talk about Daniel Perry, who was the off-duty Army sergeant driving, moonlighting as a rideshare driver. And this is during the summer of protests after the killing in Minneapolis. George Floyd. And so there are protests across the country. Nightly at this time in Austin, there’s, in some places, violence associated with that.
Perry is enraged about it. He’s posting on social media about it. He’s texting friends about it. He projects that might have to, I’m paraphrasing here, but might have to shoot some protestors, rioters to “get out of my apartment to go to work.” And says a couple of things to people that suggest that he’s imagining a circumstance where his car is surrounded by violent protestors who drag him out, and he might have to use his firearm to protect himself.
So when I write the article, I’ll get the details exactly right, but that’s the gist of it for this conversation. So at some point he drives 70 miles from where he’s stationed to go drive Uber in Austin, Texas. He makes a left turn at a red light and drives, not violently into a crowd, but turns into a crowd that’s crossing the street in one of these marches, and suddenly his car is surrounded by protesters. I think they’re all behaving like Dustin Hoffman at Midnight Cowboy. They’re, “Hey, we’re walking here.” They started pounding on the car, kicking the tires and everything. I think anyone in that situation would feel threatened when your car’s surrounded and people are banging on it. Then up comes this kid, Garrett Foster, who has been participating in these. He’s dressed in some light tactical gear. He’s carrying his AK-47-style rifle, which is his right as a Texan.
And I believe he feels that he can approach this driver and get him out of here to control the situation. He doesn’t imagine what a driver in a car surrounded by marchers might think when someone wearing tactical gear and carrying AK-47 approaches. So Perry believes his life’s in imminent danger. He pulls out his .357 and plows, I think, five rounds into Garrett Foster’s chest and kills him, skids off a couple blocks away, calls the police.
To round the circle on that for anyone who doesn’t know, he wasn’t arrested for a year. A new prosecutor came in, arrested him, charged him. They took him to trial. He was convicted. And then the governor of Texas pardoned him after he had served, I think, about eight months of a multi-decade sentence that he had received. All that is epilogue to what we’re talking about. The question is maybe legally and tactically, Steve, from your point of view, did Daniel Perry provoke that incident? If not, at the moment, did he want it to happen?
Steve Moses:
Provoke? I do not know. I don’t necessarily think that was his intent. I do think, though, that he allowed his preparations to kind of establish his mindset. I think he had, okay, if “A” happens, I’m going to respond with “B.” And he ended up putting himself in that position when he felt like possibly that was the only response that he had. So in terms of being provocative, I don’t know. That may have been unintentional, but it really doesn’t matter because his actions were provocative. And that’s something that I think we need to take into consideration is that intent doesn’t really mean anything. It’s how people perceive what we’re doing. And then that’s where the action often goes. And then that’s what we have to deal with.
Shawn Vincent:
That’s really interesting. I’m going to restate what you just said because I really liked it: that you don’t have to intend to provoke to be provocative. Yes. You were quoting one of my favorite films before we came online, Tombstone. Can you recount that moment?
Steve Moses:
Well, it was a great scene. It was the prelude to the Battle at the OK Corral with Wyatt Erps’ brothers and Doc Holliday. And I think they called themselves the Cowboys. And Johnny Ringo and some other people, I think, were involved in it. And they get into this situation where the Cowboys said they were waiting for him. So Wyatt and the boys, they go down there, and then all of a sudden it’s just a dramatic moment, and everybody grabs their gun, but nobody draws. And Val Kilmer is playing a very believable Doc Holliday.
Shawn Vincent:
Beloved. Yeah.
Steve Moses:
He’s got a double-barreled shotgun. And what he does is he looks at one of these cowboys, and he gives a little bit of a smile, and then he winks. And you can just see the expression on the … I can’t remember who this actor is, but I really like him. He’s been in a lot of cowboy movies.
Shawn Vincent:
I think it’s like … Hayden Church.
Steve Moses:
Yes, yes. I really like him. So anyway, and you can just see his face just slackens up in eyes and he goes, “Oh my God.” And then that’s when the gunplay errupts. And so what I’m saying is that sometimes we can be very provocative. And I very much believe that was Val’s intent there and do something very, very subtle. And so that was basically the scene that I was making reference to
Shawn Vincent:
To. Well, that’s a nonverbal “go ahead, make my day.”
Steve Moses:
Yes, it is.
Shawn Vincent:
Right? Which is a provocation.
Don West:
That’s the guy that can provoke the other person to make the first move. However, with confidence, they can beat them. So if someone’s looking at it objectively, they see the first move being made and they see the other person reacting quicker and more decisively. So it looks like it was self-defense, doesn’t it? When indeed they’re the ones that set it in play wanting that first move so they could justify what they couldn’t do unless the other person acted impulsively.
Steve Moses:
Exactly that. And the thing is, though, a lot of times I think we’re being real sneaky and nobody will know what I did, but it doesn’t always work out that way. And as we saw on the screen. We saw that. Other people can see that same thing. That’s why I was earlier saying that every time that you have a potential encounter with someone, I don’t care what the circumstances are, just assume you’re being videotaped.
Shawn Vincent:
Yeah. So we talked about that, the showdown, and if there’s anything in American history that’s more legendary than the showdown at the OK Corral, I don’t know what it is. And we don’t know if, in actuality, that little wink happened or what actually caused it to happen. But I just wanted to add to that, that there were legal consequences to the showdown at the OK Corral. And Wyatt Earp in particular was going to be prosecuted and spent months in legal limbo and ended up in what was essentially a self-defense immunity hearing that lasted days, if not weeks, before the judge decided whether he was eligible to be prosecuted for the associated homicides from the showdown at the OK Corral. And it was but for a witness, a traveler who had been passing through, heard about this and saw it and knew that the Clantons were making threats against the Earps and came and testified to where the judge ruled that Earp wasn’t going to be prosecuted in that.
But we had this idea of prairie justice. And we talk about this mindset that would create someone like Markus Kaarma to even remotely think that he could act the way he did. Or maybe even Daniel Perry saying, “This is the Wild West. We’re out here in Texas, and people are acting a fool and disrupting order.” And I feel he’s an Army sergeant. Maybe he felt empowered and authoritative to go do something about it, but he ended up putting himself in a situation that unraveled, that he didn’t count on, that he didn’t expect, and he used deadly force. And his eventual, I’m not going to call it an exoneration, but reprieve was just as extraordinary as Wyatt Earps. It took a governor’s pardon to unravel that knot. But to your point, Steve, what the wink in that movie showed and what we’ve seen from the behaviors from these people is they kind of wanted it to go down.
They may not have intended a homicide at the end of it, but they wanted it to go down. And in a lot of these cases, the other side accepted the invitation, and the result is death or prison, potentially, with a few narrow escapes.
Don West:
And that’s at the extreme. But we see that all the time at a much lesser level perhaps, but it’s the same process. I think that is part of the road rage stuff too. You subtly want something to happen so you can win that or teach the lesson or have the excuse. And no one expects it to result in gunfire and death, but I think that’s part of human nature, isn’t it? Whether it’s ego or pride or stubbornness or insecurity that manifests itself in aggressive behavior. Who knows what all is going on. We shouldn’t finish talking about Daniel Perry without mentioning a little bit about Garrett Foster. He chose to go to the rally with an open carrying a long gun. And I’m not sure that there wasn’t a little bit of intimidation in that and maybe provocation without intent. But nonetheless, when you’re walking around in a crowd like that, you’re going to be … it absolutely is provocative. And it seems to me that that begins to shrink the margin of error for misinterpretation. And then Daniel Perry said that he was pointing the gun at him, or the gun was being pointed in some way, and that Perry’s response was to use deadly force. We don’t know if that’s true or whether it was bad gun handling or if Perry was seeing something he wanted to see so he could react or any of that stuff. But between the two of them, they created no margin for error. And it could just have easily turned out that Garrett Foster died and Daniel Perry spent most, if not the rest of his life in prison.
Shawn Vincent:
I like what you say there, Don. A lot of what we talk about in the Armed Defender’s Dilemma is finding ways to create wide margins for error. If you’re eliminating the circumstances where this could go well, you’re just creating the atmosphere for disaster. So the opposite of provocation is de-escalation. Steve, you taught me this. It’s creating time. It’s creating distance.
Steve Moses:
It creates options.
Shawn Vincent:
Right. Creating options. The more options you have, the wider the margin of error. So if things don’t go perfectly and somebody gives you a funny little wink, right? The dominoes don’t have to fall and result in catastrophe.
