In Self Defense - Episode 72: Warning Shots, Defensive Display, and the Power of Light - CCW Safe National | CCW Safe Weapon Liability | CCW Safe Defense Attorneys
In Self Defense - Episode 72: Warning Shots, Defensive Display, and the Power of Light

Listen to the "In Self Defense" Podcast



In Self Defense - Episode 72: Warning Shots, Defensive Display, and the Power of Light

Steve Moses joins Don West and Shawn Vincent to talk about whether warning shots are ever appropriate (they aren’t), the different types of defensive display and the legal risks associated with each, and the power of light as part of your self-defense tool box.
 


TRANSCRIPT:

Shawn Vincent:

Hey everybody, it's Shawn Vincent. Thanks for joining us today. We'll be talking with Don West as always, and we're joined by our friend, Steve Moses. At the end of the last podcast, I promised you a conversation about warning shots. So we're going to get into that first thing. And then we're going to talk a little bit more in our ongoing discussion about defensive display, and not only when is it appropriate, but Steve Moses is going to explain to us that there are different types of defensive display. And Don West will illustrate that each one of those carries along with it its own type of legal risk. So we'll navigate those muddy waters. And finally, we're going to have a conversation about the value of light, having a bright flashlight on your person as part of your less lethal self-defense kit. So here is more of my conversation with Don West and Steve Moses.

Shawn Vincent:

One thing that's been conspicuously absent in all of our conversations about the spectrum of use of force and less lethal force is the idea of a warning shot. We've covered, in depth, the Marissa Alexander case. She's the one who's estranged husband came in, allegedly physically assaulted her and she fired a shot that struck nobody, missed him by several feet in the kitchen of the home they once shared. She failed to report it to 911. He called it in and she was prosecuted for attempted murder, not only against him, but of the two children he had that were waiting in the other room or out front of his house. And you and I have worked on a warning shot case as well. Let me ask you this to start the conversation. Warning shot, that is a lethal force, isn't it? Even if it's not pointed at anyone legally.

Don West:

Yeah, that's right. Usually that's where most states draw the line. You can argue about whether displaying a firearm or pointing a firearm without firing it is actually using deadly force, and you'll get different answers in different places. Mostly, that's considered not the actual use of deadly force, but there doesn't seem to be any doubt that if you pull the trigger and the gun fires, that you have then at that moment used deadly force. There are some jurisdictions where you can fire a warning shot as part of the continuum of using deadly force. Some of the statutes specifically say threaten to use deadly force as well as using deadly force in the context of a warning shot. But once you pull that trigger, once the gun goes off, you have used deadly force. Legally, from a strategy standpoint, from a factual standpoint, I've never seen a good scenario with the Marissa Alexander Case, for example, there's always a debate, whether it was actually a warning shot or if it was a shot at him that missed.

Don West:

So if you have the legal right to use deadly force, choosing to use a warning shot instead is such a delicate and precarious act that I don't know any experts that would recommend that. There may very well be specific situations where you could justify it. And clearly having made an election not to shoot somebody, but to use deadly force nonetheless, as a warning shot. And that would be the better outcome. We always think the better outcome is when you don't shoot somebody, as opposed to when you do, if you're still able to protect yourself and others. But my goodness, if you're looking for general rules, one of those is never fire a warning shot.

Shawn Vincent:

Right. Because a defensive display is one thing, but actually firing a round, even if it's pointed at the sky puts you in a whole different universe of legal risk.

Don West:

That's exactly right. And if you're looking at it just from that standpoint, many cases we've talked about before involving potential assault charges, potential brandishing charges, where the police don't even take an interest in it, frankly, unless you have clearly a complaining victim, or witnesses. Nobody gets hurt. It's viewed completely differently than even when nobody gets hurt, but a firearm is discharged. You're going to get a whole lot of attention there. And also the critically important thing to understand is that the charges that flow out of a warning shot are very, very serious. It's not just a little bit different than brandishing, it's light years different. And in many instances it's a mandatory prison sentence for discharging a weapon at somebody.

Shawn Vincent:

So you can go from an assault charge to a attempted murder charge.

Don West:

Sure.

Shawn Vincent:

Pretty easy. Steve, from a firearms instructor point of view, warning shots?

Steve Moses:

That's a no go. I cannot think of a good instance where that's going to work out for the concealed carrier or the armed homeowner. I understand that people may be able to get away with it in certain rural jurisdictions and everything, but as a standard recommendation, I would say that that is never a good idea.

Don West:

I'm interested to know Steve, what is likely to happen psychologically and mentally, if you start firing warning shots at people that you believe to be aggressors, and posing a serious threat? The rationale that I've heard in the warning shot cases that I've handled is, "Well, I just fired the shot to run them off, to scare them away." And in the one case that Shawn and I were working on, the response was not to leave, the response was to open a barrage of fire against our client.

Steve Moses:

Absolutely.

Don West:

It did not end well for anybody.

Steve Moses:

Absolutely. Because you've just told that other person that you do not want to shoot them, and perhaps are even unwilling to do so. So it was kind of like the people that say, just get you a 12 gauge pump shotgun. Alls you have to do is if you think somebody's broken into your house is just rack it and they'll run. And I'm going, that's not necessarily the case. And the one instance where I captured a burglar at gunpoint, this was like 1980. I had a double action revolver. I captured the guy at gunpoint. My wife had called the police. We were waiting for a law enforcement arrival.

Steve Moses:

The guy started to get bolder and bolder. And so in true Hollywood fashion, I was already aiming that pistol at him. I went ahead and I cocked that pistol in order to ensure his compliance and that lasted for about 15 seconds. And then he just ignored it. There's nothing to be gained in my opinion, by firing a warning shot. And just like you said, Don, in many instances, it just conveys the message that I'm reluctant to get into a gun fight. And I'm probably less capable of protecting myself.

Shawn Vincent:

Steve, I want to talk to you more about this idea of the willingness to use the firearm. We talked about Alexander Weiss, when he drew the firearm and displayed it sort of down and the side against Noah Dukart. And he didn't believe Alexander Weiss was willing to use it. That's a problem. Don had talked earlier and maybe wanted to ask you about... there's varying degrees of defensive display. And I can imagine a scenario where you can let an attacker know that you are armed and prepared to defend yourself with deadly force if things escalate. There's the old pull the jacket aside and show that you have one on your hip, there's pointing to it. There's putting your hand on your gun. There's lots of different ways I think to reveal that you have a firearm. Don, I'll be curious from your perspective, at what point does it become a defensive display that has legal risks associated with it? And Steve, I'd like to start with you about what's the wisdom of that, and is there a place for that in your use of force continuum?

Steve Moses:

Absolutely. An example might be that I was walking in an urban area. It was after dark. I was walking down the street and there were two or three young men on the other side of the street. One of them looked at me, said something I couldn't hear, the others turned their head, and then in unison, all three of them started moving towards me. And they moved towards me in a manner that very much suggested that they were going to cut me off, intercept me in some manner. I have at that time, probably a legitimate reason for being concerned. And so in my opinion, a very good thing would be, "Hey, you guys, can you all stay back," and continue to move.

Steve Moses:

If they ignore that, which they may very well, and continue to move on me, I'm going to escalate that. "You all need to stay back." And if I wasn't on the phone right now, I would be yelling that, or I would be saying that very loudly. At that point, if they continue to move on me, I've got to look at the situation. I don't know these gentlemen. It's dark, or it may not be dark. They're moving in unison. There's three of them. There's one of me. I've got a disparity of numbers. I've asked them to stay back. They've ignored it. I'm probably in danger. At that particular point, by doing nothing more than stopping, planting my feet, facing them, and basically putting my hand on my handgun. I am not drawing it. I am simply putting my handgun.

Steve Moses:

I lean forward a little bit. I drop my base and I say, "Stay back," very loudly, there's a very good chance that that will be an effective deterrent with that situation. And in that particular instance, I would like to think that I've demonstrated that I had a reasonable reason to fear for my life. I knew what the threat was. I had stripped away the ambiguity, as Mike Darter would say, and I had let them know that I would defend myself without bringing that handgun out, much less pointing it. And I think that's a very legitimate way of handling a situation like that.

Shawn Vincent:

I was just going to say, now let's say they come closer. You've still got some options.

Steve Moses:

I still have some options if I don't let them get too close. Let's say now they're at least three to four arm lengths away. At this point, I can now draw the handgun and drive it to a position that is referred to as low ready. At low ready, I have both hands on the gun. I have a firing grip. My finger is absolutely straight in every one of these ready positions that we teach, your finger is kept away from the trigger guard. It's as high on the firearm as possible, whether on the frame or the slide. And I drive that muzzle to the ground at a 45 degree or greater angle. What this does now is I've got the gun out. The gun never was aimed at them. It's pointed at the ground, somewhere between them and myself. I look at those particular people. I've got my feet spread a little bit. I've dropped my stance a little bit, and I'm in a position right now where I can bring that handgun up, and engage a deadly threat very quickly.

Steve Moses:

We can typically get the average student from a low ready position inside of about eight hours of training to bring that pistol up from low ready and fire a telling shot in less than a second. So at this particular time, I've got my gun out, I've pretty much demonstrated to hopefully my satisfaction and that of a prosecutor and certainly a jury that I had a reason to fear for my life. And I'm in a position now where I can bring that handgun into play, but I've yet to muzzle any of those particular people.

Shawn Vincent:

And so Don, from a legal risk perspective, I feel like we'd have a better job making an argument for a guy who simply put his hand on his pistol and never drew it, than somebody who drew it and pointed it. And do you think these different thresholds that Steve is talking about would be viewed differently in a court of law, or by a prosecutor?

Don West:

In my mind, it clearly would, especially when coupled with other tactical measures, like the voice commands, measuring the distance between you and the potential attackers, taking those steps in a sort of a progressive way, rather than all at once. It's very different in this situation that whilst the one Steve was describing was pretty clearly aggressive by those individuals that were sort of closing the gap. There are other scenarios where you don't take those preliminary steps that you can simply wind up pointing your gun at people that intended you no harm whatsoever. Maybe they had headphones in, they weren't paying attention to what was going on, or they wanted to ask a question, a relatively innocent question. So where people get in trouble of course, is that they brandish, which is displaying a gun in a rude or threatening manner or an assault-type crime by pointing a gun at somebody without legal justification.

Don West:

As Steve mentioned, this idea of stripping away the ambiguity, what that really is doing is you're better understanding the reality of the moment. By doing the things like voice commands and even changing your own body position to make it clear that you're ready to deal with what they have coming communicates to them, and would allow you to communicate to a jury in a court of law that you took necessary steps before you went to the point of actually threatening somebody with a firearm. I also liked the idea that when combined with voice commands and other kinds of communication, that what Steve is talking about is his own preparedness. So it takes less time, Steve, please correct me if I've misstated any of this, but it takes less time to draw and shoot the gun accurately if you start from a position with your hand already on it, than if your hands aren't it, and likewise, less time from a position of low ready, then if it's still in your holster, which gives you more time to begin to assess and continue to assess the nature of the threat against you.

Don West:

My guess is that people that are just giving you a hard time and maybe even haven't decided how far they want to take it, see you with your hand on something they think could be a gun, but aren't sure want to take it to the next level, but once you've pulled the gun and held it at low ready, and it's clear to them that you have a gun, not only have you done some things there that are likely to de-escalate, but you've also made it clear that if they don't back off, that you're prepared and able, and then you know full well, if they continue to be aggressive, that you're going to have a need to use increased force in order to stop yourself from being injured. I'm guilty of rambling here a little bit too, but self-defense is a defense to all of those potential crimes, whether it's brandishing or the aggravated assault, but you need to be able to articulate the threat.

Don West:

And I think coming full circle, people that pull a gun too quickly, because they aren't in fact, facing a threat sufficient to warrant displaying a firearm are in trouble. It's against the law to threaten somebody with a gun, unless it's in response to a clear threat against you. And the hardest thing is the stuff that Steve is talking about, the stuff that he trains people to better understand the dynamics of, to prepare yourself to more reliably assess not only the threat that you are actually facing, but also in a corresponding way, the kind of response that you can legally make to it.

Shawn Vincent:

Don, you and I once talked about the idea of thresholds when it comes to home defense. So we've talked in length about Ted Wafer, who with a threat pounding on his front door, actually opened the door to the threat and shot Renisha McBride on his porch. And he's serving 17 years for second degree murder. And then we've talked about Charles Dorsey who faced with a similar threat, banging on his door, trying to get in, in the middle of the night, waited until that threat broke the door and crossed the threshold. He came into the house, he fired, killed the intruder, and faced no charges. So obviously that front door is a big threshold in home defense. And when it came to articulating the reasonableness of his response to that, waiting for that threshold to be crossed was important for his legal defense. And as we've been talking to Tatiana Whitlock and Claude Warner, and Steve, as I've been listening to you talk about handling threats outside the home, it seems to me that there's these thresholds there as well, that a verbal command is a threshold that you lay down.

Shawn Vincent:

And if they cross that threshold, you're eliminating ambiguity. Now you have your hand on your weapon and you more forcefully tell them to stop. If they continue. Now, they've crossed another threshold. If you get low ready, and they're still after you, that's another threshold. We talk about the defender's dilemma. I'm thinking about these three people in a park at night or wherever you were. Also, if they've not demonstrated specifically that they're armed, you're dealing with potentially unarmed people. And the problem, the defender's dilemma is “When is deadly force appropriate.” And the fact that you're three against one, Don, doesn't the fact that you've demonstrated these thresholds, each time they pass one up, that makes the use of deadly force more justifiable. Because your fear that they mean you harm despite those warnings is increased, even if they end up turning out to be unarmed after all.

Don West:

Yes, I think that's right. Clearly in Steve's situation when there's more than one person, the fact that they are unarmed is no way determinative on whether they can cause serious bodily harm or death. One person can with the right size and skill or putting someone in a vulnerable position. But certainly three people without question would pose a potentially lethal threat if they have the opportunity to inflict that harm.

Shawn Vincent:

And by laying down those thresholds, you've forced them to demonstrate their intent. They've made it clearer and clearer with each violation.

Don West:

In my mind, that's exactly what you want to do so that if you ever have to explain why you did what you did, there's a progression. There are steps that you took every opportunity first, not to use lethal force, but when it became clear what their intent was, and that all those less lethal steps that you took or opportunities to basically back them off didn't work, then you may very well be confronted with that. You know, that moment when you have to point the gun and pull the trigger.

Steve Moses:

Hey Shawn-

Shawn Vincent:

Steve.

Steve Moses:

Something I would like to add here.

Shawn Vincent:

Yeah, go ahead.

Steve Moses:

The steps I described there, which would be okay, if a defensive display is needed, my first choice is going to be to get my hand on the gun, but not pull the gun. My second choice would be from there to get two hands on the gun, and drive that down into a low ready position. Now there are circumstances in which a low ready position is not good. I might need to go into a high ready position, which I have the gun, literally I pin my elbows to my side. I've rotated the hand upward, and I have, the gun itself is actually maybe only six to eight inches in front of my face so I can see the top of the front sight. Why is that? Well, maybe I'm seated, or maybe I'm around a bunch of small children, or maybe I'm standing around seated persons.

Steve Moses:

So I've got to keep that muzzle pointed in a safe direction. And then last of course would be okay. I have to shoot this person. So from either low ready or high ready, then I'm forced to go ahead by the circumstances to orient the muzzle at that particular person, I fear for my life. That's a legitimate fear, and I am intending to shoot this person. Now, having said that, I may go all the way from not having taken any action, all the way to low ready. I may go all the way to drawing my gun because I felt like I needed to shoot that person. I needed to shoot that person right now. And the person started to respond when they saw what I was doing. They did something that gave me an opportunity to discontinue that and then drop the gun down to either low ready or high ready. So it is a progression, but by the same circumstances, sometimes we have to go from not zero to 30 to 60 to 90, we have to go zero to 60 or zero to 90, but we can also ratchet back.

Shawn Vincent:

Yeah. So what you're saying is that if you see that your defensive display has had an impact, and we've talked with Claude Warner about this in the Michael Drejka case, where Markeis McGlockton shoved him to the ground in a parking lot after a verbal dispute, Drejka raises his gun. And we know from the security footage that McGlockton pretty clearly took a few steps back and changed his posture. Effectively that threat was over, but caught up in the moment, perhaps believing you should never pull your gun without firing it, Drejka shot and killed McGlockton. But he could have, if he wasn't sure that the threat was over, but thought that the immediate threat of harm had passed, he had the option to now go back to a high ready, because he was sitting there, a high ready position, not abandoning his defense, but also deescalating it there.

Steve Moses:

Yes, yes, yes. One of the things I really want to make sure that our listeners understand, especially the ones that maybe are a little bit newer to this, is that things don't always progress in a linear fashion. So we don't always go, okay, first, hand on the gun, well that didn't work. Then low ready, that didn't work, then aimed in, that didn't, that was my choice. You can bypass those, go back and forth. Same thing is true for just the use of force. Whether use of force is the manner in which I carried myself to using words to using hands or using OC to then using a deadly weapon. It doesn't have to go A, B, C, D, E. It can go right to the middle. It can go right to the end, and it could ratchet back and forth.

Shawn Vincent:

And that's up to the judgment of the defender and how often they've contemplated these scenarios and how often they've trained, frankly, with people who have illuminated these possibilities.

Steve Moses:

Yes, sir.

Shawn Vincent:

There's a case that we haven't talked about in the podcast, but that the three of us are aware of, and this is the business owner in Nebraska who faced looting and rioting and wanted to protect his bar, essentially. And he went out into the street in front and confronted some folks that he suspected were looters. There was a display of the firearm without firing it. And after that's done, and the immediate threat that he felt justified it, whether it was justifiable or not is up for debate. But then he did something mysterious, which was he stuck around, and acted almost as if that wasn't the big deal. And so if we've had all this conversation about defensive display, if it does resolve the situation, Don, we talked about whether or not it's appropriate to call 911, or to call the authorities at least and report it. I think our advice is that if you definitely feel that it was justifiable and you can articulate that, that you're better to get in front of it, but also Steve, you need to get out of that circumstance where the threat is, if you resolved it.

Steve Moses:

Yes, yes. In that particular instance, I believe his perception was I'm protecting my property. It's my livelihood. I'm not leaving it. And hopefully that's kind of a one-of situation for the rest of us. Even for him, as I'm sure it would have been, you need to disengage and get into a safer, a more defensible position as soon as possible. And then, my opinion is, is that in doubt at all, you need to call the police and you need to contact CCW Safe.

Shawn Vincent:

Let me ask something else. We talked about thresholds a little bit earlier on, and I've talked about thresholds in regards to home defense, and that is we don't go outside to meet the threat. That the front door is a big threshold. And Steve, Don, you guys, we've all talked about thresholds within your home, that a hard corner deep in your house is more defensible than, say, your living room right in front of your front door. We've advised against going to the fight. I personally think though that if you have an alarm that gets tripped, or you have a panic button, that's an extra threshold, that's a warning to the intruder that we're defending this home.

Shawn Vincent:

And I'm a big believer in light for home security. I've got lights all over the outside of my yard. I have motion sensors. My goal is to make my house the least attractive house on my block for someone to invade. And I try to avoid the intrusion before it ever happens. And Steve, tell me about, we've talked about flashlights before, is a flashlight part of your less lethal use of force, or when it comes to communicating confidence for threats that you meet outside of the home?

Steve Moses:

I believe so. It does several things. One is it tends to at night, it tends to steal the other person's night vision. The other thing that it does is it allows us to get information we need, I believe there was at least one case where I believe it was that person that they referred, the former UFC fighter to the Finishing Machine, where he was being encroached upon by that other motorist. And his concern was that the other person was armed. And of course, this guy is a former UFC fighter, former Marine sniper, just a formidable physical specimen. And he actually shot someone with an AR-15 that was unarmed and probably largely incapable of causing him any damage. And so having that ability to see that, and then the third thing it does is again, I can actually use that flashlight in such a way that the other person has a very difficult time in seeing exactly where I am.

Steve Moses:

Matter of fact, with some of these 800 lumen flashlights, you can almost do that to other people in the daylight. And so having a flashlight, my particular favorite right now is the SureFire Stiletto. It's a very flat flashlight. It's about the size of a small dispenser of sanitizer, it charges on a USB cable. Something like that, there's many reasons to have something like that other than, of course, self defense, your car breaks down, find your keys, you're trying to get your keys in the keyhole at night. Something like that, I think it just needs to be on our person all the time. And people think about, "Well, I don't need that in the daylight. I'll just do it at night." Well, first of all, if you do that, you're liable to forget it. And secondly, if you ever go into movie theaters or other places, well you can very well find there are dark places all around us during the daytime. And that's especially true inside of homes and offices.

Shawn Vincent:

All right, guys, that's the podcast for today. Thanks for listening through to the end. Next time, we're going to talk with Steve Moses again, we're going to talk about folks who are “conflict magnets.” Who tend to seek out conflict, or at least conflict finds them and how to develop the judgment and forethought to avoid those circumstances. Until then, thanks for listening, be smart, stay safe, take care.




© CCW Safe 2021. Powered by PeopleVine. Terms of use | Privacy Policy | Cookie Policy