In Self Defense – Episode 75: Claude Werner on “Serious Mistakes Gunowners Make” Part 1

Claude Werner, “The Tactical Professor,” joins Don West, Steve Moses, and Shawn Vincent for a wide-ranging conversation based on his book “Serious Mistakes Gunowner’s Make.” Claude says, “Good decisions are made in advance,” and he emphasizes the importance of having a self-defense plan in mind before you find yourself in a potentially deadly encounter.

Announcer:
This is the In Self Defense podcast with Don West and Shawn Vincent exploring high profile self-defense cases and identifying the lessons learned for concealed carriers.

Shawn Vincent:
Hey everybody, this is Shawn Vincent.
Thanks for listening into the podcast today. Today we’re joined by our friend Claude Werner, the Tactical Professor. You may have remembered our podcast with him from a couple of months ago.
Claude’s written a book, that’s available for download online on his website called Serious Mistakes Gun Owners make. And it’s a fascinating read, it’s got a lot of great information in it that’s been curated by Claude – who keeps a database that has now over 2000 self-defense or gun incidents from across the country over the course of years.
And the purpose of his book is to raise awareness for gun owners about negative outcomes is what he calls it. And either self defense gone wrong or negligent discharges or other calamities that can befall a gun owner.
And we’re going to focus our conversation on self defense cases as we often do. And in the course of this conversation we’re going to talk about the value of having multiple options in your self defense toolkit that includes voice commands, light OC spray.
Claude introduces me at least to an interesting term called proxemics and managing your distance when you’re weighing the different self defense options that you have.
And finally, we’re going to have some good news actually about gun owners who exercise good judgment and how frequently, even when we do see self defense scenarios, despite some of the horror stories that we tell on this podcasts, responsible, thoughtful gun owners who exercise good judgment very often have good results even in the worst case scenario of having to use their firearm in self defense.
So we’re joined as always with Don West, he’s national trial counsel for CCW Safe and Steve Moses, our friend, revered firearms instructor and CCW Safe contributor.
And we’ll start off with him introducing his friend Claude Werner. Thanks for listening. Steve, why don’t you once again introduce your friend Claude to our listeners?

Steve Moses:
Okay, I’d be glad to. Claude is a friend of mine. I met him at a tactical conference. I believe that one took place in Little Rock or might have been Memphis, probably Memphis many, many years ago.
At the time I was already somewhat familiar with Claude. I met him, I sat in on several of the instructional blocks that he has taught at the tactical conference in the past.
And he is really one of my favorite instructors out there. As much as anything for such an intellectual, analytical approach that he takes to everything. So, he’s got an excellent, excellent resume.
Former Special Forces, he was a chief instructor at the Rogers Shooting School, phenomenal instructor. He’s one of the persons that I really, prefer the way that he goes because he doesn’t put that much focus on the gear part of winning and avoiding confrontations, but the mental side of it. So, I’m a huge fan and I’m really glad that Claude’s back here with us today.

Shawn Vincent:
And Claude, a lot of folks might know you as the Tactical Professor, is that right?

Claude Werner:
That’s correct. Thetacticalprofessor.com

Shawn Vincent:
And how’d you come upon that name?

Claude Werner:
Well, as Steve said, I pursue a somewhat more theoretical, approach to things at times than my colleagues do, and that’s neither good nor bad. It’s just kind of the way I am. And, actually, throughout my life, professor has been a, nickname that people have given me. So, it just kind of became the Tactical Professor because we’re in this business.

Shawn Vincent:
Gotcha. Well, professor, we’re glad to have you here. And one thing, so we had a conversation with you a couple months ago, but we didn’t have a chance to do is dive deep into a book that you’ve written that you titled Serious Mistakes that Gun Owners Make.

Claude Werner:
Correct.

Shawn Vincent:
And tell me a little bit about the book and what motivated you to write that.

Claude Werner:
Well, as Steve said, I teach at the Tactical Conference, the Rangemaster Tactical Conference every year. And I guess it’s six or seven years ago now. My colleague Craig Douglas, who also teaches at the conference, came up to me at the end of the conference and said, you should do presentation on what he called bad shootings.
And I found that topic kind of interesting. So, I just started doing a little bit of research on it. And what I found was that there was a large area of gun ownership and personal protection policies or practices, whatever you want to call them, that we really didn’t talk much about in the industry and that were, I thought, pretty important.
Now I want to emphasize the fact that they’re actually very rare. There’s 80 million gun owners, and over the past six years, I’ve gathered about 2,000 incidents that these occurred.So actually driving a car is a lot more dangerous or more likely to cause casualties. But as my late colleague William April said, it’s not the odds, it’s the stakes because the nature of the kind of incidents that I describe in the book, in many cases permanently changes someone’s life. If you have the unfortunate circumstance to shoot your kid or have your kid get a hold of your gun and shoot themself with it, that will alter your life forever. And so that’s the aspect of it. I don’t want to be preachy about it, but I do want people to understand that there are serious mistakes that a very few people make that any of us could make and if that happens, that then results in what I call a negative outcome, either legal or moral or emotional that will, could affect you for the rest of your life. So that was the genesis of the whole project and I’ve carried that on.
I have, like I say, a couple thousand incidents now that I’ve gathered and I broke it down into, over time it broke out into about 11 categories that I specifically enumerate.

Shawn Vincent:
Sure. When you start seeing similar type events over and over again. And just to elaborate on something you said there in your book, you talk about how you have a penchant for building databases throughout your different careers and interests in life, right?

Claude Werner:
Yes, that’s right. I’m a data head. I like gathering data, I like creating databases with it and then I like looking at what does the data say, and I like to be as objective about that as I can and not, not use it to, I don’t know, further an agenda, if you will – there’s a lot of that goes on and I try to avoid it.

Shawn Vincent:
So you don’t come into it with an opinion and then try to shape the data around it. You objectively look at what we’re seeing in the news, and how these cases reported and then you’ve made some determinations around that.

Claude Werner:
Data is useful if it’s used properly.

Shawn Vincent:
Yeah. And I like your term negative outcomes because there’s specific goals to having a firearm for self defense, and we talked last time, that those goals are protecting yourself and your friends and your family. When that happens and it’s done right, that’s a mostly positive outcome. But I like that you determined that there’s a lot of different types of negative outcomes that can result from, the bad judgment or the misuse of a firearm.
Give us a flavor of some of those.

Claude Werner:
Well, we focus a lot almost, really almost exclusively before I started doing this on what you said was the positive outcome and I don’t think shooting someone is necessarily a positive outcome but obviously preventing yourself or a family member from becoming a casualty, that is a positive outcome.
So that tends to be what we focus on. And that’s a natural human condition that we want to think about what’s good and what’s positive in our life. And what I wanted to do with this book was to say, well, that’s true.
And like I say, the vast majority of defensive gun uses result in a positive outcome in that sense that they avoid the person being injured, but that there are possible negative outcomes. And becoming a casualty at your own hand, shooting yourself or getting arrested or having a family tragedy, those are negative outcomes. And, and I would like to provide people with a guide, if you will, or at least somewhat plot about how to avoid that.

Shawn Vincent
And so in that vein, you talk a bit in the book about mindset, and you say that, many spur of the moment decisions are based on a mindset that the defender has, before they enter the perceived life or death situation.
Right? And one thing that really stuck out to me is you say sometimes a gun owner has only considered one decision in advance and therefore automatically chooses it whether or not it’s appropriate to the situation.
That’s a quote from your book, and I’d love for you to talk more about that because I think we see in the cases that we study that sometimes pulling the trigger may, have been the only option that the defender thought they had in the moment, but as we Sunday morning quarterback it and look at it with 2020 hindsight, we see that there are a number of options along the way they could have chosen.

Claude Werner:
We were talking before we started recording about optometrists and how often when we go to the optometrist, it’s typically which is better, A or B.
And there’s almost always at least a binary decision available to us. And a lot of times I think that people don’t think about what are the other options. And that’s one reason why I developed a concept that I call strategies, tactics and Options for Personal Protection.
Because in a lot of cases we have more options than we realize. And I don’t think that people always consider them. And frankly in a lot of cases it’s because we don’t present them with the concept of what their options are.
To say, well, is it necessarily my best option to shoot this person? Do I have another option and could I take it and then avoid that whole messy circumstance of the police and the various other negative outcomes that come along with shooting someone?

Shawn Vincent:
Yeah. An example that you gave is this idea like, I’ll shoot anyone I find in my home as an example of a pre-made decision or a mindset that people have. And you’ve already articulated if you happen, I think a lot of the cases that you explored where maybe teenagers who are prone to sneaking out might sneak back in and you can be mistaken for an intruder. And if you’ve already got that idea that the only solution to encountering an intruder in your home is that you’re going to shoot, that’s when tragedy happens.

Claude Werner:
Exactly. And that’s very easy for us to. It’s a trap that we fall into because once we start really programming ourselves with an idea, it becomes very difficult to undo that concept.
And I’ve experienced that myself in a completely benign, if you will context where I thought about a quip that I was going to make to a guy that, that was kind of hurtful and then when I got to the range, it was a gun related quip. And when I got to the range I thought to myself, this is not a good idea. And I went over to him and I said it anyway.
And I said to myself, that was stupid. And that was when I realized the power of my own mental programming to have me do things that I knew even in the instant beforehand was a stupid or a bad idea.
And I think that when people have something like, the best example that I come up with is that idea of I’ll shoot anyone I find in my house. But there are others. But that’s a case of very deep programming that they’ve done to themselves.

Steve Moses:
Hey, Claude and Shawn, may I insert something here?

Shawn Vincent:
Of course.

Steve Moses:
One of the things that I would like to add is that in reference to, Claude’s statement was that perhaps that was a teenager trying to sneak back in the house or other people have said, well, perhaps that was someone that had Alzheimer’s and maybe they’d lived there before. We know about that one instance where the, the female that was intoxicated, impaired by having been in a car accident was attempting to get into a house. My own story is that the person that actually broke into my house was none of those.
It was someone though that was intoxicated. And at that particular moment he, when I was able, and in a position where I could have actually shot him, he was no longer a threat.
And so in spite of the fact that, well, yeah, that’s a legitimate, instance where I probably could have done something like that. Notice I said I could have done something like that, the very thought at that time, I’m going to shoot somebody right now that doesn’t need to be shot and I’m going to live with that for the rest of my life. And more than likely that person has a family that will miss them, caused me to, not take the shot. And so for those people that just say, yeah, but none of those instances are ever going to happen to me, it may come to you in a different form and it may still be a situation in which shooting the individual is not required.

Claude Werner:
Agree 100%.

Shawn Vincent:
And in the cases that you’ve looked at 2000 different, events in your database collection, how many of those would you say in broad terms are cases where there are very ambiguous conditions going on?
Right? We, I think we imagine we’re going to have a very cut and dried someone broke into my house, they’re a clear intruder, they’re dressed in black and I’ll shoot them if they do. But often things are much murkier. It’s not as clean as all that.

Claude WernerL
There are many, many, mistaken identity shootings that, and that’s what I call that, and we could include, and I don’t like to use the word unnecessary, but it’s better than anything else I’ve got, Steve being, Steve’s example, being a good example of unnecessary.
But sometimes there are simply mistaken identity shootings where, my estimate, and based on the incidents that I’ve gathered is about once a week in this country someone shoots their spouse thinking that it’s an intruder.
And I mean those in a completely legitimate sense that, it’s not somebody who wanted to get rid of their spouse, but rather that somebody who thought, unfortunately very common, that the female in the house will get up and go to the bathroom. And I don’t really know how this works because the situation has never occurred to me, but the male somehow thinks that she’s still in bed with him and then hears a noise and sees a shadow and shoots and then realizes, no, it’s actually, my spouse and I just shot her or killed her.
And that happens like I say, pretty much. I get, I’ve gotten to the point now where I basically have a fairly wide series of correspondents who feed me these stories and I get one of those about once a week.
So, it is a fairly high percentage of very ambiguous shootings that occur, which is one reason why I say, and I’m going to put this in as a plug for a personal philosophy.
If you keep a gun at home for personal protection, there should be a flashlight right next to it, and you should pick the flashlight up before you pick up the gun and know how to manipulate the flashlight in conjunction with the gun. I’m very strong about that.

Shawn Vincent:
Well, and what that leads to is that you need to be sure about what your target is before you shoot it. And we’ve seen cases. You mentioned this in your book, people who shoot through doors.
We had a case where someone fired into a darkened garage because they feared, an intruder was in there, having really no idea who’s there. And that’s a recipe for disaster.

Claude Werner:
And unfortunately, there are certain, I’m not sure if I want to call them training, because I distinguish between training, education, and practice. And there are certain practice, drills, regimens, whatever you want to call them, that people could do that would prevent those.
The simplest of them being to learn to say, who’s there? and if you hear, “Daddy, it’s me”, then the FBI calls that a clue.

Shawn Vincent:
Right.

Claude Werner:
Maybe. Maybe you shouldn’t start blasting. and let me say, this is another aspect of the data gathering that people have challenged me, and they said, well, in force, on force, the gun, the light draws fire, and I’m afraid if I use a flashlight to illuminate somebody, they’ll shoot me and so forth and so on.
And I learned that when I was in the army, or somebody who was in the army taught me that or whatever in an overseas conflict. And so I specifically went out and tried to find an example of where that happened in the United States.
And I did find one. It occurred in 1995 in Alabama, 25 years ago. One.

Shawn Vincent:
One out of the thousands of cases that you’ve looked at.

Claude Werner:
As opposed to one a week where a flashlight would have prevented a tragedy. So, this is an example of the optometrist question. A or B, which is better to rely on one instance of something that occurred 25 years ago or 50 incidences that will occur this year?
Personally, I think I will rely on the 50 incidents that occurred this year in terms of what I’m going to practice on.

Shawn Vincent:
Sure. And we’ve talked. Yeah, we’ve talked to Steve a number of times about light being part of Defender’s less lethal toolkit and beyond just the benefit of being able to see what your potential target is.
That also at night, if you have a bright enough flashlight, you can give them a kind of temporary blindness. And it can be very off-putting – they know that you are in control of some tools at least.
And so let’s talk about that a little bit. You talked about the firearm being one tool with a very specific purpose and that if we’re going to enter into ambiguous, self defense situation and we want to get away from this binary, I, only have one option to something that’s frightened me, that requires having other options and other tools at your disposal. You’re a fan of OC spray, I know.

Claude Werner:
Oh, absolutely. I think that, and I will give credit to my mentor, John Farnham for that, that many years ago, one of the first classes that I took with John, he pulled a can of OC out and this is about probably the year 2000.
And he said this thing will solve an awful lot of problems that you simply cannot use your gun for. I guess it was this past weekend, the mayor of Portland was accosted by somebody after leaving a restaurant.
And while I’m not a big fan of the mayor of Portland and all that’s gone on there, this guy got right in the mayor’s face and was acting pretty aggressive with him. And so the mayor let him have it with pepper spray and that just kind of like diffused the whole thing.
And then he gave him a bottle of water on top of it. Here, wash your eyes out with this. And I looked at it, and some people have been critical of them. And I say, look, if any of my students were in that situation, I would not in the slightest criticize them for spraying somebody that gets in my face.
But think about it. If your only option was a firearm, what could you do? Nothing.

Shawn Vincent:
Right. And that’s. Well, and so you talk about unreasonable fear in your book and also just talk about being uncomfortable. You say if someone’s making you extremely uncomfortable, they are not directly threatening your life.
And when someone gets right up in your face and starts yelling, that’s very uncomfortable. And it can justify, some response. But that response can’t be lethal force. Not yet.

Claude Werner:
That’s right. If you look at the statutes of, I would say any state that I’ve certainly been in, because anytime I travel I think it’s prudent, for people to look at the statutes of the use of force and of deadly force of the state that they’re going to, along with, carry statutes and so forth. When you look at those, they all make a very clear distinguish meant between using force, which, using Pepper spray on somebody is a use of force, and the use of deadly force, or lethal force, whatever it might be called in the code, that lethal force is a very limited option, and using force is a much more broad option, and it doesn’t have the ramifications and doesn’t get people in trouble.
So, I think that thinking about that as the optometrist’s question, B. Well, can I solve this problem by painting the sky orange? Will that solve the problem then? let’s do that instead of getting myself in trouble.

Shawn Vincent:
Yeah. And we have Don West on the line. Don is, of course, the national trial counsel for CCW Safe and a longtime criminal defense attorney. And Don, we’ve talked about before, too, like, Claude’s saying that the mayor of Portland has received criticism for using, pepper spray.
But criticism’s better than prosecution, wouldn’t you say?

Don West:
Well, to Claude’s point and to yours, exactly, if you take the mayor out of it, notorious person of sorts, and you just put a regular person in the situation, and that person uses, some type of pepper spray, OC Spray, and gets prosecuted for some kind of assault, then you’ve got perhaps a legal challenge that you have to face, but that is light years different than if that same person had drawn a gun and threatened that person with a gun under those circumstances, for lots of reasons.
And I would like to hear, Claude’s comments on this about, well, first of all, drawing a gun isn’t necessarily using deadly force, but as Claude so ably points out, it is clearly the threat of deadly force.
And while legally you may not be charged with using deadly force, if you display a gun, it may very well set the stage for increasing, for an escalation, for changing the dynamic of the moment that puts you in a situation where you may be forced to use the gun without any other clear options.
And as a criminal defense lawyer, I would absolutely prefer to represent someone who is a little overzealous with the use of pepper spray than a person who’s overzealous with the display of a firearm.

Claude Werner:
Yeah, I agree 100%. I know. and correct me if I’m wrong, Don, but I don’t know any place where the use of pepper spray would constitute an aggravated assault or an aggravated battery in my, simple battery, but those are two very different charges. If I had to face a charge of simple battery, which, my knowledge of law in Georgia is pretty much limited to Georgia, if I had to face a charge of simple battery or aggravated assault here, I would much rather have the simple battery than the aggravated assault which simply displaying a firearm.
I know people here who have been convicted of aggravated assault simply for threatening someone with a firearm. And that’s a felony in the state of Georgia, so that that’s a problem.

Don West:
Yeah, agreed. It’s unfortunate when you’re trying to get your hands around these notions of what the most serious charges are, what lesser charges can be, because the 50 states don’t use the same language to describe the same kind of conduct or criminal offenses.
And you find terms like menacing and brandishing and assault. And then in some places, I guess like Georgia and certainly in Florida, you have simple assault, which is a fairly low level misdemeanor in the state of Florida to aggravated assault, which is an assault with the use of a deadly weapon that can carry a prison sentence.

Same thing with battery. Battery in Florida is a misdemeanor that carries as much as one year in jail. It rarely does, it can’t send you to prison, whereas aggravated battery, with the use of a deadly weapon, even if there’s no significant injury, can result in a prison sentence of up to 15 years. So, when I use the term light years, I’m really talking about there’s a huge disparity in range of punishments and frankly the likelihood of being convicted of a felony in and of itself is a life changing event.
Even if you don’t go to prison, if you’re convicted of aggravated assault, if you’re convicted of aggravated battery, you are now a convicted felon and is accompanied with the loss of the civil liberties and all of the stuff that comes with being a convicted felon in this country, which is including, including often a life changing thing.

Shawn Vincent:
Loss of the right of carrying a firearm.

Don West:
Yes, and that’s just the beginning of it, of course. So, yeah, I think your point is so well made, Claude, that having some sort of intermediate ability to use force, and I agree with you, the use of pepper spray is clearly force, just as hitting somebody with your hand, whether it’s open or closed, is the use of force and how far that force travels down the continuum till it reaches deadly force is that sort of that no man’s land, that uncertainty, that ambiguity of how do you deal with the response, your response to the threat that you’re facing.
But if you have no other tools and much less other training as to how to bridge that gap, then you’re the guy who winds up pulling a gun on somebody who says, all I was doing was arguing with him. I wasn’t threatening him, I was just calling him out for something he did. And the guy pulled a gun on me. Well, that’s assault. It’s probably aggravated assault.

Claude Werner:
Mhm, mhm. Well, and I try to stay away from cliches, but there is that one cliche of if all you have is a hammer, everything looks like a nail. Well, that’s unfortunately true, or whether everything looks like a nail, it forces you to treat everything like a nail. And I think that’s one of the things in, the sense of this negative outcome philosophy that I’ve come to, be known for is that people thinking about what our options are ahead of time and developing some kind of thought about, well, if this happens, I can do this and, but I can’t do this.
If somebody comes up and slaps me, I can’t shoot him for that. But, as the mayor did, if somebody comes up and gets in my face, well, I can paint them orange and, then call the police, and I think I’ll probably be okay in that legally.
But if I haven’t thought about what those options are ahead of time, that’s how I set myself up for a negative outcome. And one of the things that I try very hard to do as a trainer and an educator is to set my clients up for success, not set them up for failure.
And I think that’s important for us to do in the training and education community.

Don West:
I have a comment, Claude, for you, to address in the scenario. There are criminals out there that are looking to take advantage of people by surprise, whether setting an ambush or coming up and their goal is to overpower them and to do whatever their criminal intent is. But a lot of the situations that we deal with, using the mayor’s scenario as an example, are things that begin to build over while it could be a relatively short period of time, it isn’t just an instant. And you’re watching this thing unfold and you’re making decisions along the way. And I, guess the idea is you’re suggesting that people should think about that well in advance of being able to in the middle of that scenario, anticipating that if they are approached by somebody, if it gets heated, if it appears like it’s getting out of control at the point that they truly begin to feel threatened and can articulate why, so as to make it reasonable, then they’re on the verge of having to use some kind of force to defend themselves.
And if they can meet the force offered with the force, they respond, then they’re still, from my perspective, within the legal parameters that justifies their behavior. But once that balance shifts and you’ve got an unarmed person being aggressive who is then confronted with a gun, all of a sudden that balance of power, that force, that notion of who’s acting reasonably and who isn’t, shifts dramatically.

Claude Werner:
I agree. And one of the things that I’ve been working on lately is the idea of teaching people how to – I call it managing space. The concept of what’s called proxemics, was developed by a cultural anthropologist several decades ago and I like to incorporate that into my educational efforts and have for a long time. But I’ve thought a lot more about it lately in the sense of knowing where the boundaries are, where you have to make a decision, and thinking about, well, if this person crosses the boundary, then at that point they’ve helped me make the decision about which of my options should I pursue.
And I think that’s an important distinction that perhaps isn’t covered enough because we haven’t thought about it. I think that a lot of the way firearms training conducted doesn’t take that into account. For instance, the, the effective range of pepper spray, most of the key. The most common units are the little key ring ones, and those really have a maximum effective range of about 8ft.
I’ve set them up both with the inert and with the live ones and tested it. And that’s about what you can get out of them is eight feet. So you have to recognize that, well, if this person is getting close to me at that point, and the borderline between, in proxemics, between the near phase and the far phase of what’s called social phase space is seven feet.
So I actually have a little diagram and I have cones that I set up on the ground for people to look at and understand. This is the distance where that tool is effective, and if it looks like that person is going to need to be painted orange, I would rather they be painted orange at 7ft as opposed to, let’s say, as it was reported with the Portland mayor, that the guy was actually one foot away from him.
Now, whether that’s really true or not, that may have been the mayor’s perception, but obviously he was very close, probably within arm’s length and at that point, if even if you spray someone and they get their hands on you, they can still start to hurt you as opposed to, well, if you spray them seven feet away when they can’t get their hands on you and then you just move off the line or run away or something like that, well, then you sustain no injury at all. And that’s something I’ve been working on that I think is important for people to understand is that concept of managing space and the distances at which various tools are effective.

Don West:
Yeah, I took a class that Steve gave and what impressed me a lot, and I don’t mean the most because every bit of it was terrific and very helpful to me, to understand the unfolding dynamic of something like that but the notion of incorporating the voice commands and the body language, the things that you may have to – now I’ll shift to a lawyer’s perspective that I want as a lawyer to be able to communicate to the judge or to the jury or even to the prosecutor before charges are filed to say this is what was done, it was done early, it was done often, and the attacker continued to persist, continued to close the distance, continued to escalate, the threats, continued to demonstrate the ability to inflict harm.
And you’ve basically got a trial manual for how this thing needs to be presented to the jury because of all of these intermediate steps when it was safe to use that particular technique to the point where nothing worked and the person clearly demonstrated they were and presented an imminent threat of great bodily harm or death, which legally, in every state in the country, justifies legally the use of deadly force.
Now I know Claude and Steve both say, even though you are legally justified in using deadly force, you may still have some options where you don’t have to, you may still be able to somehow avoid it.
But from a lawyer standpoint, I always have to get to the point when I’m representing somebody who’s been prosecuted for using deadly force, I have to get them to the point and the jury to understand that when deadly force was used it was legally justified.
Because whether it’s aggravated assault or brandishing or first-degree murder, self defense is always a complete defense to those charges.

Claude Werner:
Mhm, and I think that’s a really good point, Don, that when we try to use tools that are less than deadly force and our voice being one of those and creating distance or whatever, I consider those tools as well, that certainly tactics that the more of those we use ahead of time, it helps us in, in the decision making process.
And as you said then that allows you as the attorney to present that in terms of why that was, became a reasonable decision on the part of the defender about why they did what they did.
So, I think that, that aspect of trying to preserve as many of our options as we can and make the decision process clear, first of all in our own minds and second of all in the aggressor’s mind.
And then finally if it gets to the point where we have to use some degree of force, whatever that might be, and it comes to a, legal standpoint, then it allows you as the attorney to tell the jury, well this, this was a decision process and that was reasonable under the circumstances.

Don West:
That’s right. That’s going to be the ultimate litmus test on whether the jury agrees and that is whether it passes that test at every stage of reasonableness. It doesn’t have to be perfect, but it has to be in their mind, in my experience, that they could see themselves acting the same way or that if somebody acted the same way, they wouldn’t say that was unreasonable.
And the defender in many respects has an advantage in the criminal justice system because now in every state the prosecutor has the very high standard of proof of beyond a reasonable doubt.
And as that applies to self defense, the prosecutor has to convince the jury, once self defense is raised through the presentation of some evidence, has to discount that evidence to the extent that they can satisfy the jury beyond a reasonable doubt that the defender’s actions were not in self defense.
And if you’ve done some of those things you’re talking about, if you’ve started low before you had to go high, you’ve got a sequence of events where you are at each stage of how this thing plays out, demonstrating reasonable decision making until you really had no reason, no other choice, and frankly, if you can do that and it’s clear you probably don’t get charged to start with.

Claude Werner:
Yeah. At least with a reasonable prosecutor.

Don West:
Well, I think the police have a lot to do with that. Now you can also say with a reasonable detective or investigator, but certainly when the officers show up at the scene and then it gets handed over to the detectives, if all of those boxes are checked and there’s nothing about this that just seems wrong, certainly the way that that case gets presented to the prosecutor goes a long way.
And there are a lot of prosecutors that, yeah, a lot of prosecutors don’t want to second guess, the guys, on the ground. But you mess it up. You mess it up.

Claude Werner:
Yeah. A friend of mine, who is a retired police officer and now a private, investigator put it very succinctly. He said the best solution is to stay out of the system in the first place.
And so, and you’ve described exactly how that happens. That if, if you can convince the detectives that this was reasonable, in their mind, and if they put themselves in that set of circumstances and say, well, I might not have done anything very different, well, then what they present to the district attorney is likely to be something that’s in your favor.

Don West:
Well, I can tell you from personal experience, even with CCW Safe, that we’ve had several lethal self defense shootings during the time that I’ve been associated with the company.
Only one of them was actually charged. It was a bad decision to charge, and it was a bad decision to charge first degree murder under the facts. But out of a number of lethal shootings, only one was charged.
And while it was sheer hell for our member, to deal with the system for two years, at the end of the day, after 21 months waiting to go to trial, after the presentation of the evidence and the jury’s deliberation, in less than two hours, they acquitted him across the board of first-degree murder.
Had he been convicted, he would have spent every minute of the rest of his life in prison. And to me that was an anomaly. That one never should have gotten charged. There didn’t seem to be anything pretrial that could be done to talk sense into it and that one had to go to court. And fortunately, our member prevailed and justice prevailed, clearly.
But to your point, Claude, I think that’s right. If it looks good, if it seems right, if there’s no forensic evidence, physical evidence that contradicts the way it looks like it played out, then you can be in pretty good shape.

Shawn Vincent:
Final note on that conversation. We frequently advise against making detailed statements to law enforcement in the wake of a self defense shooting. But the moral of that story is we’re finding that some smart gun owners who make difficult life or death decisions with good judgment often find that their cases don’t get prosecuted and don’t go past the law enforcement investigation phase. So that said, thanks for listening in. We’ll have more with Claude Werner, next time. Until then, be smart, stay safe. Take care.