In Self Defense – Episode 92: The Redding California Kidnapping Case

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In Self Defense – Episode 92: The Redding California Kidnapping Case

Firearms instructor Tatiana Whitlock introduces Don West, Steve Moses, and Shawn Vincent to the case of a violent  kidnapping that was thwarted by a good guy with a gun. The case brings up important issues associated with the justified use of lethal force when used in defense of others or to stop an aggravated felony. 

Shawn Vincent:

Hello everybody, it’s Shawn Vincent. Thanks for listening in to the podcast today. I’m pleased to tell you that Tatiana Whitlock, firearms instructor, will be joining us once again. Tatiana always brings to our attention some very interesting cases. Today, we’re going to talk about, we’re calling it the “Redding, California Kidnapping Case.” One thing that’s going to be fascinating about this conversation is we talk a lot about armed defenders and concealed carriers using deadly force to protect themselves. We don’t talk quite as much about concealed carriers using deadly force in defense of others.

Shawn Vincent:

This case is a kidnapping case, and it brings up the legal questions of defense of others. In many places, you’re authorized, you’re justified to use deadly force to prevent a forcible felony. Kidnapping certainly meets that criteria. In that discussion, we find that there are additional nuances that the armed defender/concealed carrier has to consider when putting themselves in the shoes of another or using deadly force to prevent a forcible felony. If protecting yourself when you feel that you’re in imminent fear of great bodily harm or death is legally tricky, then using deadly force in defense of another, or preventing that forcible felony is even tricker yet.

Shawn Vincent:

This case turns out well for almost everybody involved, except for the guy who deserved to be put in jail for 11 years. We’re thrilled to have Tatiana back on the show. Thanks for listening. We’re joined as always by Steve Moses, firearms instructor and CCW Safe contributor, and CCW Safe’s National Trial Counsel, Don West, he’s a veteran criminal defense attorney. Me, I’m Shawn Vincent, litigation consultant. Here is my conversation:

Shawn Vincent:

Tatiana, one of the reasons I love having you as a guest on the show is that you bring to our attention very interesting cases that bring up a lot of nuanced details that come up that most people probably don’t even imagine will happen when they make the decision to be a concealed carrier or an armed defender. One of those cases that you sent over to us is, I’m going to call it the “Redding, California Kidnapping,” and this is a domestic violence case that became extraordinarily violent, turned into a kidnapping case, and ended with an armed defender intervening with a very strategic defensive display that ostensibly saved the lives of the women who were kidnapped, if not saved them from extraordinary peril, and resulted in the capture of the kidnapper.

Shawn Vincent:

Don, I shared with you these details and you did some of your own research on this. Do you want to give us a shot at the overview of some of the key facts here? 

Don West:

I’ll take a stab at it. I don’t know that I have a full command of the facts, because there’s quite a bit not known. There have been… We’ve had pretty good access to some news articles and things, and we’ve got a fairly good storyline that some of the big points were filled in later. There was this felon named Carl Hulsey, and where I’m a little unclear is how he came to be in the presence of these two women that were sisters. I think maybe they had come over to his house, one of them, to clear out some personal items that they had…

Shawn Vincent:

Yeah, I think one was maybe a wife and the other one was her sister, and the wife had been in a safe house for women who were victims of domestic violence. I think he had hurt her before, and she thought that she was coming to get some of her stuff back at a time where she thought maybe he wasn’t home.

Don West:

Speculating that she may have brought her sister along to help with getting the items or maybe as support if he were there…

Shawn Vincent:

Or lookout, or whatever, yeah.

Don West:

Yeah, but in any event, it went really bad and got violent, where Mr. Hulsey wound up hitting and harming both of them at various points in time there at the house, and then wound up taking… I guess we’ll call her his wife. I don’t know whether they were married, but in any event, he wound up taking his wife’s sister by force in a car. Do I have that right? And wound up leaving the area and then showing back up fairly quickly at a mini mart-type place.

Shawn Vincent:

River Mini Mart.

Don West:

Yeah, there had been a brick involved, some physical assault, some choking, even to the point I think of one of the women losing consciousness for a while. It was very violent and brutal. Somewhere during the fracas inside, I think the sister or Hulsey’s companion wound up texting and was able to text an individual that some of the stuff was going on. That was a fact that we learned considerably later, because the initial report indicated that when Hulsey got to the store and apparently went inside, as he exited the store an individual who said he saw this woman clearly in distress, or maybe he even saw the two of them together before he went into the store, in his mind was coming to her aid, coming to her rescue and drew his concealed licensed firearm, pointed it at this fellow to basically make him stop, and eventually he did stop and then wound up running away.

Don West:

The initial description of what happened was, in a sense a good Samaritan in a self-defense or defense of other context, witnesses this woman in great distress in the company of this fellow at the convenience store, and we now know they had just been in a domestic violence beating from this guy, both she and her sister. He confronts the individual at gunpoint. The guy realizes at that point that the good Samaritan means business. He thinks better of engaging him, and essentially takes off. Law enforcement responds quickly and winds up chasing him, and then finding him through the use of a helicopter. Then the case is kind of fast forwarded through the criminal justice system where faced very serious charges.

Shawn Vincent:

And he ends up pleading guilty pretty quickly and gets 11 years in prison for some of his felonious deeds.

Don West:

I thought that was an interesting fact that it was 11 years… that it was very, very fast considering the pace typically of the criminal justice system with just a matter of a few weeks, maybe only a month or so. That suggests that perhaps he and his lawyer thought the evidence was overwhelming. Perhaps he believed that he would be convicted. Perhaps there were enhanced sentences that he was threatened with if he got convicted in the normal fashion. Or the combination of all of that perhaps in the advice of his counsel he thought 11 years was a good result for him, and that he got it over with quickly.

Shawn Vincent:

You get an extra 100 bonus points for using the word “fracas” in your description of that melee.

Don West:

It reminds me of the old Groucho Marx. I don’t know if anybody has ever seen those on rerun. None of you guys are old enough to have ever watched them in real time. They had a secret word, the secret word of the day, and if someone happened to mention it during any of the conversations during the game show… I think it was a duck, wasn’t it, Steve? Do you know?

Steve Moses:

No, I believe that show was  “What’s my line?”

Don West:

No, I can’t remember what it was actually called, but it was hosted by Groucho Marx.

Shawn Vincent:

Nice.

Don West:

Anyway, I think it was a duck. The duck would drop out of the ceiling on a rope with the secret word, and there’d be prizes…

Shawn Vincent:

Well, I’m making that proactively the secret word if it wasn’t already.

Don West:

Well, thank you. Thank you.

Shawn Vincent:

So you win the prize there. Tatiana, one of the reasons I think this case is interesting is because we usually discuss in the most common circumstances an armed defender protecting themselves from an imminent threat of great bodily injury or death. The statutes almost everywhere also have a provision for defense of others. We don’t see that as often. I think we’ll agree by the time we’re done with this conversation that using a firearm in defense of others, it’s certainly legally more fraught than protecting yourself. As a firearms trainer and a self-defense instructor, how often does that come up with your students when they talk about their motivations for becoming armed defenders, the concern of protecting others beyond just themselves?

Tatiana Whitlock:

Typically, I get two extremes, especially in the individuals who are new to the defensive arts and concealed carry, and really any defensive tool. There’s the camp of people that come to let’s say a concealed carry permit application course, and when asked why they’re taking that class it’s so that they could essentially be superhero on demand should the need arise, meaning for themselves and for anyone else in distress, and that of course we know is third party intervention, and that’s fraught with all kinds of nasty problems.

Tatiana Whitlock:

Then we have the other group of people who was very quietly conflicted. They’re not sure how to share with everyone that they’re there not because out of this altruistic love for mankind and society, and their desire to be able to save everyone in need, but because if it came down to it, they’re going to save themselves. And “Sorry, stranger next to me, I’m in this to save myself and I’m prepared accordingly. Here’s to hoping you are too.” So those are the two radical shifts that we see. Of course, group number one is extremely expressive and feels very virtuous in sharing their opinion. Group number two is very quiet, introspective and afraid to share that sentiment because they might be judged as selfish or weak, or not interested in the wellbeing of other people.

Tatiana Whitlock:

I think we have to come to some resolution of where we sit in that spectrum so that we don’t put ourselves, our loved ones in more jeopardy or compound an already dangerous situation.

Shawn Vincent:

How do you approach the folks who feel like their concealed weapon makes them a superhero? What are your thoughts, concerns, advice for group A there?

Tatiana Whitlock:

There’s a couple of fantastic resources out there. I love the book, “Violence of Mind” by Varg Freeborn. He does a phenomenal job of outlining what your motivation really needs to be to carry concealed. Then there’re the skills and proficiency examination of what is your marksmanship on demand at the range, with no stress, meaning just you and a piece of paper, and a target. Then let’s add a shot timer and see what’s some very benign level of stresses, and we haven’t even touched upon the fact that in a real force-on-force deadly force encounter, someone’s actively trying to hurt you or someone else, and that level of chemical response in turn is going to make for some interesting mess in your head in how you respond.

Tatiana Whitlock:

Those are the easy ways to make people appreciate what they are actually bringing for preparedness and skill to the table. Then of course, we dive into the legal conversations. There has to be a conversation about what your state says you are allowed to do in defense of others, and you have to appreciate the ramifications of doing that well and potentially of doing it wrong.

Shawn Vincent:

Steve, you’ve instructed an awful lot of folks. What is your experience in encountering the armed superhero in defense of others mindset?

Steve Moses:

It’s actually a relatively small percentage of our students. A lot of people that have that mindset are very much of the opinion already that they’re adequately prepared for an incident like that, and actually looking forward perhaps to being able to do that sometime, to just basically say “Yeah, I not only talk the talk, I can walk the walk.” We caution them for very much of the same reasons that Tatiana was referring to. We believe that your kind of opening up Pandora’s Box, and by the same token we also appreciate that there are circumstances in which intervention on behalf of a third party is justified and probably morally the correct thing to do.

Steve Moses:

Of course, that’s absolutely going to be loved ones, family members, persons that you’re immediately responsible for, and then when you kind of start getting out into the periphery there in terms of people that maybe I know casually, or maybe people that I don’t know at all, we accept the fact that there are some crimes that are just so horrific that perhaps we might contemplate intervention, understanding that there may be a tremendous downside that’s just like “I cannot live with something. I can’t live with myself if I saw someone doing something just horrific to a child,” or perhaps it was someone… You see people that are on church security teams that are basically voluntarily putting themselves in those positions.

Steve Moses:

We just say, “Hey, you just need to understand that if you choose to go down that route, it comes with a number of downsides, and you need to be well aware of them.”

Shawn Vincent:

One thing you said there, and I think we’ll circle back to this Steve, is that when we’re looking at defense of others, there are different categories of “others.” There would be your own immediate family, there’re friends, there are members of maybe your church group, and then there’s perfect strangers in a communal setting. You may have different thought processes when it comes to each of those. 

Steve Moses:

When you intervene in a situation in which there are strangers, the chances are that you probably do not have a good grasp of all the circumstances that are taking place in this encounter that you probably should know about.

Shawn Vincent:

You might not even know which one’s the good guy and which one’s the bad guy.

Steve Moses:

That’s right. Or maybe the good guy turns on you. That’s not unusual when police officers intervene in a domestic violence issue, and some guy has hurt or harmed his partner. They go to take that person in custody and the victim then starts fighting the officer on behalf of the attacker. There’s just a lot of things we don’t know.

Shawn Vincent:

That’s interesting. Don, Tatiana touched a little bit about the legal ramifications of the defense of another. Would you agree that when it comes to the legal justification for using or threatening to use deadly force that the defense of another has a little bit more gray area than the defense of yourself?

Don West:

Yeah, for a couple of different reasons. Let’s use this one as an example to sort of peel off some of those layers, because there’s a lot of stuff going on in this particular case, especially if you were to take out the notion that the person with the gun at the Mini Mart had some knowledge of what had just happened. Let’s say that this person didn’t, that the sister had not texted someone, but rather this is a guy at a convenience store who sees a woman that he believes to be in great distress, that forms the opinion, the conclusion that she’s being held against her will. Perhaps she has been or is continuing to be the victim of some sort of domestic assault, domestic violence, and with that limited information decides to intervene.

Don West:

Well, at that point when you are defending someone else, you have essentially the same right to defend someone else as you would have if you were in the same situation. Of course, you never really know what situation the other person is in because you aren’t that person. You don’t know what led up to it. You don’t know, as we talked about before, in a sense who may be the aggressor, who may be the good guy or the bad guy. Anytime that you introduce a firearm into a situation, you run the great risk that your perception is incorrect and that you wind up being charged with assault. I should point out though that there are some other interesting aspects of this because in a typical self-defense scenario, you have the right to use deadly force to prevent an imminent attack that’s life threatening, or threatens serious bodily injury. That’s sort of a base level.

Don West:

I don’t know if he thought that’s what had actually happened or not. Perhaps he thought she was in danger of her life, or being seriously injured. He may or may not have known what had happened before, but it wouldn’t be evident to me that she was in that status or that condition at the moment if this fellow had already left and gone inside the store. Maybe she was confined. Maybe she was too scared to get out of the car, but he had to put a lot of pieces together before he decided that he had the legal justification to display a firearm. An interesting aspect of this is, there’s typically two ways that you can use defensive force. One is, to protect another that we’ve described, but also in most jurisdictions there are certain kinds of criminal offenses, often categorized as aggravated felonies.

Don West:

Some statutes specifically identify which crimes are subject to use of force, but essentially if you see one of these crimes being committed against someone else or against yourself, you have the right to use up to and including deadly force to prevent the commission of that crime. If his instincts were right that she was being kidnapped, that’s likely within the category of one of those aggravated felonies that would give him the right to use more force than he might otherwise. We don’t know if he actually saw a battery, or what he may have actually witnessed that in his mind justified the use of force. Let’s also keep in mind that it’s light years, legally, it’s light years between the display of a weapon, even if that weapon is pointed at someone and accompanied with verbal warnings than it is to fire the gun.

Don West:

He didn’t shoot this guy, and I think to his credit if he believed this woman was kidnapped and being terrorized, and he was there to save her from that, the fact that he didn’t shoot the guy is to his credit. He may in fact have been legally allowed to do that without himself being in fear of great bodily harm if he believes he was interrupting a kidnapping or some other kind of serious violent felony. Separate and apart from that though, he didn’t shoot him when the guy ran away. I wanted to point that out just because that’s also to his credit. A lot of people, I think Tatiana talked about those that want to be the hero, I’m sure we can all think of people that we’ve come across where in that exact situation as soon as the guy turns and runs some shots get fired.

Don West:

Then the explanation to the police when they get there is, “Well, he was going to get away and I was trying to keep him there for you.”

Shawn Vincent:

Tatiana, I’m curious, we’ve talked on this podcast a lot about the differences between firing your weapon in self-defense and defensive display. Of course, if you’re wrong with the defensive display then it could be something like aggravated assault. It could be brandishing. Lots of places charge things in different ways. You’re taking on an extraordinary legal risk when you display your weapon. But there are times, and the more cases we look at the more we find specific instances where the display of the weapon without firing it solved the problem. It broke contact. It ended it and nobody had to die.

Shawn Vincent:

Do you explore that with your students at all?

Tatiana Whitlock:

Absolutely, and that’s a nuance again, that if you don’t make the distinctions between, can put people in a really precarious situation. Of course, the “knowledge” that we receive and we’re indoctrinated with from childhood and infancy, all the way up, as a result of prime time TV, and Hollywood, and video games, and all of those really fun theatrical experiences, those are not teachable tools. And yet, that’s where a lot of people’s “I did this because… Isn’t that what you’re supposed to do?” Like you just described, they shoot on the retreat of someone, or as they’re running away because they think they’re helping.

Tatiana Whitlock:

We all saw that in a movie at least once or twice throughout the ages, and of course that is not how this works in the legal system. Much of the time that we have these conversations in classes, it’s kind of a myth busting topic. What is a defensive display versus brandishing? What is threatening? The firearm itself is not a de-escalation tool up until a certain and very specific moment, at which point a defensive display is necessary and hopefully it’s a tool that if used properly in those constructs can dissuade the attacker, much like what happened in this case, and no one gets hurt.

Shawn Vincent:

Steve, we’ve talked about before that sometimes people have a mindset that if they are going to draw the weapon they have to have been justified in using it, and that sometimes they follow through. We’ve seen cases where if just the display of the weapon managed to change the circumstances, that’s for the better. Here’s one thing I’m interested in, because you’ve had real life experience with this. You had somebody at gunpoint at one point who had broken into your home. You told that story on this podcast.

Shawn Vincent:

I’m curious, is there a difference between keeping someone at gunpoint for the purposes of making them stay there so that they can suffer some consequence in the end, say when police show up? Or is having them run away with the dangerous situation being resolved and concluded just as an acceptable or perhaps even a better outcome? Do you know what I’m saying there?

Steve Moses:

Yes, sir. I think that’s the preferable outcome. Like I said in that podcast when I was going over in some detail my incident, I held the person at gunpoint and I held them for probably… I’m going to say it was probably somewhere between five and 10 minutes. It felt like 45 or 50 minutes. It was not pleasant. The situation became more tense. I was determined at that point that I was going to hold him for the police, and he very much believed that. Since then, and I’ve told that story, is afterwards that very night I said, “Wow, I screwed this thing up and I am lucky to have survived that just not only from the standpoint of getting harmed myself, or finding myself charged with a crime.”

Steve Moses:

Since then, after doing a lot of training, I’m very much of the opinion right now that if there’s just not an absolutely good reason to hold that person there, then there’s nothing wrong with letting that person go ahead and leave the scene. When I say the only thing that might cause me to say “I need to maintain control of this person,” is simply because I believe this person would represent a threat to other people. That’s one of the reasons that it’s actually legal in a lot of jurisdictions to shoot a fleeing felon if the felon is at that time moving in a direction and with the tools and intent to possibly harm someone else. That is very much their intent.

Steve Moses:

Otherwise, if they are doing that just to escape it’s not correct, it’s not lawful to shoot that person, in effect, to force an arrest.

Shawn Vincent:

I want to throw this out to you guys too, because if you’re in a situation where you’re deliberately holding someone at gunpoint, let’s say ostensibly to keep them there for when the police arrive, the police can apprehend him, there’s this horrifying moment where maybe the police don’t know what they’re walking into. The police show up to the scene of a crime where there are reports of a firearm being involved, and there you are, the only one there, standing up with a gun in your hand. I imagine that in not all circumstances, I think Steve you wrote about a case like this recently, you may be mistaken for the bad guy.

Steve Moses:

Absolutely.

Shawn Vincent:

So, holding someone at gunpoint, waiting for the police to arrive is a potential way to get yourself shot by cops if you’re not careful about how that transaction goes down.

Steve Moses:

That, or another concealed carrier.

Shawn Vincent:

Or another concealed…

Steve Moses:

Good intentions and bad judgment.

Shawn Vincent:

That goes to the context, Tatiana, Steve brought this up earlier and I wanted to talk to you about it and your interactions with your students, would you agree that there are different classifications of defense of others? We talked about how defending your children would be a different ball game than defending a friend or a coworker, or even a stranger at a bank for example.

Tatiana Whitlock:

Absolutely. You have yourself as priority one, and if you’re a parent, your children are priority one plus. That’s just how it works in the land of parenthood as well. So, it has something to say about persons you’re responsible for. Let’s say you’re a caregiver for a handicapped individual or an elderly person, or a child. That person may not be blood relative to you, but you are the responsible entity there and guardian person literally, and sometimes figuratively too. So yes, there is a spectrum of individuals. The way we kind of categorize that so that people don’t think that they are just going to walk by someone raping a woman without participating, would be to consider the information you have at hand.

Tatiana Whitlock:

If you are in the Walmart parking lot, for example, this is an example we often use, and you’re walking at dusk hours. You’re pushing your cart and you see a minivan and a vehicle. In between the two parked vehicles, you witness a younger gentleman, an older woman, a baby in a stroller and some kids being loaded into the minivan. It looks like a domestic. It looks like an argument. It’s heated. It’s getting loud. What do most people do? Well, they avert their eyes. They try not to participate. They try to be polite and allow people their privacy within… Nothing’s gotten violent yet. But as you approach the gap in the vehicles where the people are standing, things escalate and the younger gentleman is now on top of the older woman, and he’s pounding on her. He is aggressively, aggressively attacking her on the ground.

Tatiana Whitlock:

What do you do? That’s an interesting question because the assumption for most hearing the story is that the male is the aggressor and the older female is the victim. But if given a little bit more fact, you would discover the gentleman is actually the father of those children and the woman is the attacker who tried to grab one of the children as they’re getting in the car. That changes things. You have to be careful about your assumptions walking up onto a true third party intervention, with limited information and knowledge. You also have to consider that many off duty law enforcement look just like you. Gender is also a huge dissuasion as people assume who the bad guy is. Age is also an assumption where people assume which one the attacker is versus the victim.

Tatiana Whitlock:

Those assumptions are what really give people pause before they dive in wholeheartedly and start lighting up the person who looks like they’re prevailing in the fight.

Shawn Vincent:

Yeah, interesting. The closer your relationship with somebody, the higher the context you have, the more understanding you have of what the dynamic threat situation is. There’s like a correlation between how well you know the person and how well you are able to discern exactly what threat you think you perceive is going on.

Tatiana Whitlock:

Absolutely. That’s definitely a piece of it. Then of course, we have community individual members, like a congregation perhaps. There are plenty of people that walk into a place of worship in a state of distress. Does that make them a villain? Not necessarily. They just might be in a state of duress or distress. Or, are they somebody who potentially a serious threat and danger to the community? That’s where we hope individuals spend as much time as possible with Mr. Steve Moses here so that they get the proper training to put a plan in place.

Steve Moses:

Thank you, ma’am. Thank you.

Tatiana Whitlock:

I refer people to you all the time, Steve, because you explore those concepts out very, very clearly, and this is one of those. Within a community, there are knowns and there are unknowns. Your coworkers at work, your congregation, your classmates, all of that comes into play. Who are the fish that you swim with regularly? And should a shark swim in, what does that really look like and how should you respond?

Shawn Vincent:

Don, legally… Yeah, and we’ll come around to that in a moment, Steve, but legally do you think it makes a difference how well or how much context that the armed defender has when they intervene? You talked about the circumstance hypothetically from the point of view that he was just an unknown bystander. We learned, as you said, in our further research, that he was texted by the woman who was being kidnapped, and he knew her. I believe he was a neighbor, and he came specifically to intervene on behalf of someone that he had a relationship with, and he had a context for the moment.

Don West:

What I take from that is the closer the relationship the more information and insight you have as to what the true picture is. The big problem is coming to the rescue of somebody who doesn’t need to be rescued, pulling a gun on somebody who’s not actually committing a crime of some sort, or mixed allegiances. Steve made the comment about domestic situations where the alleged victim of the assault turns on law enforcement when they get there. These are dynamic, emotional, especially domestic violence kinds of situations, that are very, very hard to know what’s going on and be willing to take the risk of the consequences, not just the risk of people turning on you and you be injured, but the risk of being arrested for committing an assault to when these people wind up testifying against you, or sued. Something like that.

Don West:

We talk about this concept of stripping away the ambiguity. The whole notion is getting a clear picture of what’s actually going on, other than as opposed to what your first sense or your first impression is. By having some sort of familial connection or some association, then you have a much better insight, and therefore I think your decisions to become involved are more calculated, more rational and more information-based. I did want to comment though on this idea of holding someone at gunpoint, just to point out that if the event itself is over and you’re not intervening to stop the commission of the crime, or coming to the aid of another who would have the right to use force to defend themselves against the person that was the attacker, keeping in mind that when you defend others you step into the shoes legally of the person that’s being attacked and you have the right to use the force that that person would have to use. And no more. And no more.

Don West:

Once that’s done, and you’re there now holding a gun on someone, ostensibly waiting for the police to get there, this is no longer defense of others. This isn’t self-defense. This is a form of citizen’s arrest, and that’s very different. That’s very jurisdictionally dependent as well. In most places, you have the right to use the threat of deadly force, or some levels of force when you have probable cause to believe a felony has been committed. Certainly, if you’ve witnessed that felony that gives you probable cause. Once you hold somebody at gunpoint for the purposes of the police getting there, you have effectively taken them in custody through the citizen’s arrest. That’s fraught with its own set of risks, including yourself being charged with false imprisonment or assault if your perceptions were incorrect, or if you used too much force for the situation.

Don West:

I’m not aware of any situation where you’re allowed to use deadly force to effect a citizen’s arrest unless deadly force is being directed to you. Then it’s self-defense. Even if you hold someone at gunpoint, that does mean that you have the right to shoot them if they decide to break away. That’s again, very risky stuff and something that before you do, you should spend a couple of hours figuring out what you’re allowed to do and what you absolutely can’t do within the state that you live.

Shawn Vincent:

Interesting, because once you’ve stopped the felony from occurring if you hold them at gunpoint, now ostensibly you’re just preventing them from fleeing because you’ve already stopped the crime and now you’re in different legal territory.

Don West:

Yeah, I think that’s fundamentally changed, if the person is threatening someone with a knife, and you point a gun at them, and they drop the knife and they just stand there. Then they are no longer a threat to that other person and arguably not a threat to you either. Now you’ve, in my view anyway, that has now transitioned from defense of others to now you holding that person in your custody as a citizen’s arrest waiting for the police to get there.

Shawn Vincent:

I think that’s one thing that I’m constantly — not surprised anymore — but fascinated with in these cases, is how quickly the justification can vanish depending upon the actions of the parties involved in a very fast moving dynamic situation.

Don West:

Yes, absolutely. Fast moving, dynamic, fluid. Then you add some confusion, misinformation, lack of information to all of that, and the typical chaos and confusion that associates these things that happen in an instant. There’s a whole bunch of things, as Tatiana pointed out, that can go wrong very, very quickly.

Shawn Vincent:

Steve, Tatiana was very generous in her description of how you work with people when it comes to, and tell me if I’m wrong here, like with the church defense sort of stuff. These are people who at that point they’re taking on the responsibility of protecting others. So maybe since Tatiana framed that context, you can give us just a couple of points that you talk about in those training sessions about how to handle that responsibility.

Steve Moses:

What is very interesting is that you have to disavow many of the students at the beginning of the class that have the notion that they have any kind of special police powers, just because they’re on a voluntary church security team. As a matter of fact, they have no more rights than anybody else in the congregation. We go to great lengths to impress upon them the dangers of trying to detain or affect a citizen’s arrest on someone that’s causing a problem. Basically, if that person is not just an active threat to others at that particular time, we actually encourage our team members to let that person actually leave the premises, escort them to the edge of the premises, keep an eye on them, contact law enforcement and let law enforcement handle any kind of a risk just because it’s just so easy to make a mistake.

Steve Moses:

It could very well be that no mistake was made, that regardless you still find yourself charged with a crime and having to deal with that. I think everything that Don was saying about that is absolutely correct. Actually, I have a question for Tatiana, and my question to you Tatiana is, how many students of your, or what percentage of your students, actually seem to be surprised when you tell them that if they interrupt a home invasion or they stop someone at gunpoint, that actually they can let the other person go as opposed to holding them for the police.

Tatiana Whitlock:

I don’t know about a percentage, but there are a lot of jaws that drop and quizzical looks that take place when we have that conversation. It’s a three minute conversation in the midst of many of the concealed carry application classes when that question arises. The firearm does not have to be a finality, and it is certainly not necessary to press the trigger because you drew the gun. I often have that issue to deal with where the premise is, well if the gun is coming out of the holster it’s because it must be used to fire. If they’ve made the commitment prematurely to draw the guns, then they feel that they must also fire it, and that is not the case.

Tatiana Whitlock:

Building and decision making, and patience, and a little bit of pause so that you can take in all the information around you before you leap to the trigger is typically where that conversation goes. So yes, it’s typically the same individuals who are ready to don a superhero cape that are also shocked to realize that life doesn’t happen the way it does in the movies.

Shawn Vincent:

Before we wrap up this conversation, Tatiana, there’s a tangential issue that made me think of some of our prior discussions. That’s the kidnapper here eventually pled guilty. One of the things he pled guilty to was using force that was capable of causing great bodily injury. I think a lot of times armed defenders might not have a clear idea on where the threshold is between “Oh, that hurts,” and “Oh, this is in fact great bodily injury that is worthy of a potentially lethal response.” I know you’ve had conversations about trying to paint the difference between those two.

Tatiana Whitlock:

Oh, certainly. Many people are amazed to read the definition of what serious bodily injury means. It reads like a horror movie. It does not discuss the escalation. It does not discuss an owie, a boo-boo, a chipped tooth, a broken pinky finger, hurt feelings, crushed pride. None of those things are part of that equation. It really comes down to disfigurement, dismemberment, serious injury to a bodily organ, basically up until the classification of death. We are now hands on or the consequence of an action or a strike would result in death, or the worst of the worst, which is permanent disfigurement or extended convalescence necessary for recovery of health.

Tatiana Whitlock:

We’re talking about months in the hospital here. This is not a disagreement scuffle. This is not the first time you get your bell rung so hard you see the sideways lightning, which many people who have never been in even in a sportsman-like brawl, a sportsman-like fight where you’re sparring in some kind of martial arts or boxing environment, they’ve never experienced being impacted by a fist or a blow. The first time they receive that feeling of that impact can be mind blowing. It’s game changing because you think you’re going to die, but really, no, you got an owie. And then-

Tatiana Whitlock:

Now well, compound that with now my pride is hurt. If there are witnesses, which are buddies watching, then that escalates things in people’s motive state, and we can find people making very rash and bad decisions, hopefully there is not a firearm involved.

Shawn Vincent:

The only reason this stood out to me is that two specific acts I think qualify as serious bodily injury. One is, in this case, we read about a brick to the face. I think we can agree that that gets us to the point where fear of serious bodily injury is there. The other, Don, you mentioned this one, choked to the point of unconsciousness. I know there can be a lot of damage done to very vital parts of your body and your neck and throat when choking is applied. So, there’s some solid examples of serious bodily injury in the context of this case.

Don West:

Not only the notion of the serious bodily injury that’s associated with that kind of choking or strangulation, but if you lose consciousness, or if you’re not alert anymore you can’t defend yourself. You become exceptionally vulnerable. On your way to the loss of consciousness, you certainly have the right to defend yourself. That would be considered a risk of serious bodily harm or death in that context. Just because somebody puts their hands on your shoulders and shakes you a little bit, or you get into a slapping contest, you haven’t certainly risen to the level where someone would try to objectively look at this and say, “Yeah, you were facing a clear imminent threat, credible threat, of great bodily harm or death.”

Don West:

Unless it gets there, as Tatiana very eloquently pointed out, then you do not have the right under the law to use deadly force to defend yourself.

Shawn Vincent:

Hey Steve, so final thought here. Given the facts as we know them, just from the press reports that we are able to patch together, did this defender get a good result in this case?

Steve Moses:

I believe so. I believe so. One, he stopped what appeared to be a crime in progress. Two, he didn’t harm anybody. He was not harmed. Three, apparently he was not charged with a criminal offense. So, I would say that that was indeed a very good outcome.

Shawn Vincent:

Don, from a legal standpoint we know that there is a place for defensive display. Is this a good example of how defensive display can be used justifiably to avoid a life threatening situation?

Don West:

Yeah, I think you can check off all the boxes on this one. I think under the circumstances, as he witnessed them, what he knew from the information in the text, he would also have known by virtue of that information just how violent this guy was. He may even have known who this guy was at that point, that he would have every reason legally to be justified in displaying the weapon. Since he didn’t pull the trigger, we never have to address that. I think he did the right thing within the right context.

Shawn Vincent:

And showed a lot of discretion and restraint in that regard as well.

Don West:

Agreed.

Shawn Vincent:

Tatiana, you bought this case to us to explore. I assume you’ve used this as an example to students in your classes before. What’s the big lesson that you usually get out of telling this story?

Tatiana Whitlock:

The big lesson actually comes from the domestic violence conversation. If the result of the act of leaving a domestic violence relationship that from a women’s self-defense standpoint, and this is where we see many women coming to defensive arts, and to firearms, and to concealed carry, that the act of leaving, that disengagement from the relationship is often where we see a real escalation of violence and their personal safety is in even greater jeopardy. So, making sure that they have a strategy, a plan, the right not only tools but paperwork in place, and a support team in place to protect them emotionally, physically, et cetera is a really important thing to consider.

Tatiana Whitlock:

All of the things we discussed and then some, the catalyst for this entire story is a result of a relationship growing apart with a violent actor as part of that party.

Shawn Vincent:

All right, everybody. That’s the show. Thanks for listening through the end. In case you weren’t one of the people yelling at your podcast apparatus, the answer to Don’s question about what’s that show with Groucho Marx, it’s “You Bet Your Life.” We’ll be back next time with another podcast with Tatiana looking at another story involving the use of force in defense of others. Until then, be smart. Stay safe. Take care.