Shot Too Late

When the window of justification closes

Gary Eastridge, Critical Response Coordinator for CCW Safe, describes a “window of justification” that opens and closes in self-defense scenarios. The window opens when someone encounters an imminent threat of death or great bodily harm, and the window closes as soon as the threat is no longer imminent. Don West, CCW Safe National Trial Counsel and veteran criminal defense attorney, says “It’s a clearly defined window in the law. If you shoot too soon or too late, regardless of how imminent that threat was at one point in time, you’ve gone outside the parameters of the law.”

In our series The Four Elements of Self-Defense, we explored nine high-profile cases. Recently, we revisited two of those cases in which the shooter fired too soon, before he was able to make a proper threat assessment, and before the window of justification opened.  This week, we’ll look at two cases in which the shooter fired too late — after the window of opportunity closed.

Tit-for-Tat Mutual Road Rage

In December of 2016, 56-year-old Ronald Gasser was cut-off in traffic by a man driving an Audi SUV. Gasser had no way of knowing the driver was the local highschool football hero Joe McKnight, who had gone on to play a few seasons in the NFL. The incident triggered what law enforcement described as five-mile “tit-for-tat mutual road rage” incident that saw both parties giving rude gestures, shouting obscenities, and driving erratically.

The conflict came to a head at a busy intersection just outside of New Orleans. McKnight exited his vehicle and approached Gasser — at Gasser’s invitation, one witness claimed. Unarmed, McKnight leaned into the vehicle, resting his arms on the threshold of Gasser’s opened window. In recorded testimony to law enforcement, Gasser claimed that, before he fired, McKnight “lunged” at him. “I feared for my life at that point in time,” Gasser said. “I was extremely fearful. I took the gun off safety and fired several shots.”

While investigators found McKnight’s blood inside the vehicle, forensic evidence suggested that McKnight was turning away from Gasser when he was shot. Joe McKnight was retreating, prosecutors insisted.

In this case, the window of justification was literally a window — the open driver’s side window of Gasser’s vehicle. At trial, defense attorney Matthew Goetz quoted Louisiana’s law that allows the use of lethal force if an intruder crosses the threshold of a person’s home or car. But prosecutors stressed that the evidence showed McKnight was withdrawing when he was shot. If McKnight had opened the window of justification by leaning into Gasser’s vehicle, he closed that window when he started to retreat, and Gasser fired as that window of justification closed.     

A Divot in the Pavement

Gyrell Lee found himself in a deadly gunfight during the early morning hours of New Year’s Day 2013. Lee had been celebrating outside his cousin Jamieal Walker’s home. Throughout the evening, Quinton Epps — described by the local newspaper as a “known troublemaker — had come by, engaging in escalating verbal confrontations with Walker. At one point, Lee, a licensed concealed carrier, retrieved his pistol from his car. “Just in case,” he told investigators.

The final confrontation began when Epps slow-rolled past Walker and Lee, parking a few houses away. The cousins walked down the street to confront Epps. An argument ensued. Walker punched Epps. Epps grabbed Walker by the hood of his jacket and fired multiple shots into Walker’s body. While Walker fled (he was discovered later, dead behind a nearby home), Epps turned his pistol on Lee, but Lee fired first, and Epps fell to the ground.

Then, according to prosecutors, Lee fired a final shot. At trial, they presented evidence of a divot in the pavement. It was created, they said, by a bullet that Lee fired into Epps’ prone body. The implication was that Lee kept shooting after Epps was down, after the deadly threat was eliminated. Don West says that an armed person can still be a threat — even if they are wounded and on the ground — but Gyrell Lee’s attorney, Sam Dixon, either didn’t make this argument, or was unsuccessful at convincing a jury. Jurors convicted Lee of second-degree murder. During deliberations they asked to review only two pieces of evidence: the autopsy report and the photo of the divot.

Don West says the prosecutor seemed to successfully use that tiny bit of evidence to transform Lee from “responding to eliminate an immediate threat to a guy who was trying to even the score.” The jury believed the final shot came too late — after the window of justification had closed.

The Lesson for Concealed Carriers

Both the Gasser case and the Lee case are close calls. According to Louisiana law, Gasser may very well have been justified in shooting when McKnight was leaning across the threshold of the car window — just an instant before he pulled the trigger. The jury in Lee’s case reported they were deadlocked before the judge pressed them to come to a late night decision. Two of the jurors cried when the verdict was read aloud. Clearly they struggled with the significance of that final bullet.

Gasser and Lee both made other mistakes that led to their prosecution, but it’s clear jurors decided that both shooters fired too late. The lesson for concealed carriers is that when the window of justification closes, it often closes very quickly. In self-defense, every shot counts. While your first shot may be justified, if it eliminates the imminent threat, or if your attacker starts to flee, your final shot may be considered murder.

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