In Self Defense - Episode 75: Claude Werner on “Serious Mistakes Gunowners Make” Part 1 - CCW Safe National | CCW Safe Weapon Liability | CCW Safe Defense Attorneys
In Self Defense - Episode 75: Claude Werner on “Serious Mistakes Gunowners Make” Part 1

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

The Tactical Professor, Claude Werner joins Don West, Steve Moses, and Shawn Vincent to discuss his book, “Serious Mistakes Gunowners Make,” and how defenders can avoid “negative outcomes.”


TRANSCRIPT:

Shawn Vincent:

Hey everybody, this is Shawn Vincent, thanks for listening in to 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." 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 2,000 self-defense or gun incidents from across the country, over the course of years.

Shawn Vincent:

The purpose of his book is to raise awareness for gun owners about "Negative outcomes" as he calls it, in either self-defense gone wrong, or negligent discharges, or other calamities that can befall a gun owner.

Shawn Vincent:

We're going to focus our conversation on self-defense cases, as we often do. In the course of this conversation, we're going to talk about that value of having multiple options in your self-defense toolkit. That includes voice commands, light, OC spray.

Shawn Vincent:

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.

Shawn Vincent:

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 these 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.

Shawn Vincent:

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. We'll start off with him introducing his friend Claude Werner. Thanks for listening.

Shawn Vincent:

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 it might have been Memphis. Probably Memphis ... Many, many years ago.

Steve Moses:

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. 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.

Steve Moses:

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.

Steve Moses:

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 did you come upon that name?

Claude Werner:

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.

Claude Werner:

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.

Shawn Vincent:

One thing ... We had a conversation with you a couple months ago, but what 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:

Tell me a little bit about the book, and what motivated you to write that.

Claude Werner:

As Steve said, I teach at the Rangemaster Tactical Conference every year. 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 a presentation," on what he called, "Bad Shootings."

Claude Werner:

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 polices, 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.

Claude Werner:

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.

Claude Werner:

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.

Claude Werner:

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 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 could affect you for the rest of your life.

Claude Werner:

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. 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 types of 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 I like looking at, what does the data say? And I like to be as objective about that as I can, and not use it to further an agenda, if you will. 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 are reported, and then you've made some determinations around that.

Claude Werner:

Data is useful, if it's used properly.

Shawn Vincent:

I like your term “negative outcomes.” Because there's specific goals to having a firearm for self-defense. We talked last time, that those goals are protecting yourself, and your friends and your family.

Claude Werner:

Mm-hmm (affirmative).

Shawn Vincent:

When that happens, and it's done right, that's a mostly a positive outcome. But I like that you've 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.

Shawn Vincent:

Give us a flavor of some of those.

Claude Werner:

We focus a lot, 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.

Claude Werner:

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 there are possible negative outcomes. Becoming a casualty at your own hand, shooting yourself, or getting arrested, or having a family tragedy, those are negative outcomes, and I would like to provide people with a guide, if you will, or at least somewhat thought, about how to avoid that.

Shawn Vincent:

In that vein, you talk about mindset, that spur-of-the-moment decisions are based on a mindset that the defender has before they enter the perceived life-or-death situation, right?

Shawn Vincent:

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 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 20/20 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? That's one reason why I developed a concept that I call Strategies, Tactics and Options for Personal Protection.

Claude Werner:

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.

Claude Werner:

To say, "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:

An example that you gave is this idea, "I'll shoot anyone I find in my home," as an example of a pre-made decision, or a mindset that people have. 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 can be mistaken for an intruder. And if you've already got that idea that the only solution to countering 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 really start programming ourselves with an idea, it becomes very difficult to undo that concept.

Claude Werner:

I've experienced that myself, in a completely benign, if you will, context. I thought about a quip that I was going to make to a guy that was a kind of hurtful. Then when I got to the range ... It was a gun-related quip. 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.

Claude Werner:

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.

Claude Werner:

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 had lived there before." We know about that one instance where the female that was intoxicated, impaired by having been in a car accident, was attempting to get into a house.

Steve Moses:

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, when I was able and in a position where I could have actually shot him, he was no longer a threat.

Steve Moses:

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.

Steve Moses:

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, 2,000 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?

Shawn Vincent:

I think we imagine we're going to have a very cut-and-dry, "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 Werner:

There are many, many mistaken identity shootings, that's what I call that. We could include ... I don't like to use the word "unnecessary," but it's better than anything else I've got, Steve's example being a good example of unnecessary.

Claude Werner:

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. I mean those in a completely legitimate sense. It's not somebody who wanted to get rid of their spouse, but rather that somebody who thought ... Unfortunately, very common that the female of the house will get up and go to the bathroom.

Claude Werner:

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."

Claude Werner:

And that happens, like I say, pretty much ... 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.

Claude Werner:

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:

What that leads to is that you need to be sure about what your target is before you shoot it. 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:

Unfortunately, there are certain ... I'm not sure if I want to call them, "Training," because I distinguish between training, education and practice. 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?"

Claude Werner:

And if you hear "Daddy, it's me," then the FBI calls that a clue.

Shawn Vincent:

Right.

Claude Werner:

Maybe you shouldn't start blasting.

Claude Werner:

Let me say, this is another aspect of the data gathering, that people have challenged me. They said, "Well, in force-on-force, 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.

Claude Werner:

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.

Claude Werner:

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 to Steve a number of times about light being part of a defender's less-lethal toolkit. Beyond just the benefit of being able to see what your potential target is, 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.

Shawn Vincent:

Let's talk about that a little bit. You've talked about a firearm being one tool with a very specific purpose, and that if we're going to enter into an 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.

Shawn Vincent:

You're a fan of OC spray, I know.

Claude Werner:

Oh, absolutely. And I will give credit to my mentor John Farnham for that. Many years ago, one of the first classes that I took with John, he pulled a can of OC out. This is probably the year 2000. And he said, "This thing will solve an awful lot of problems that you simply cannot use your gun for."

Claude Werner:

I guess it was this past weekend, the mayor of Portland was accosted by somebody after leaving a restaurant. 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. So, the mayor let him have it with pepper spray. That just kind of defused the whole thing. Then he gave him a bottle of water on top of it. "Here, wash your eyes out with this."

Claude Werner:

Some people have been critical of him, 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."

Claude Werner:

Think about it, if your only option was a firearm, what could you do? Nothing.

Shawn Vincent:

Right. So, you talk about unreasonable fear, in your book. You also talk about being uncomfortable. You say that if someone's making you extremely uncomfortable, they are not directly threatening your life. Obviously when somebody 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 use of force, and of deadly force, of the state that they're going to, along with carry statutes and so forth.

Claude Werner:

When you look at those, they all make a very clear distinguishment 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. 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.

Claude Werner:

I think that thinking about that, as the optometrist's question B, "Can I solve this problem by painting this guy orange, will that solve the problem?" Let's do that instead, instead of getting myself in trouble.

Shawn Vincent:

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.

Shawn Vincent:

Don, we've talked about before too ... 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:

To Claude's point, and to yours, exactly, if you take the mayor out of it, a 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.

Don West:

I would like to hear Claude's comments on this, about ... 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.

Don West:

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%. And correct me if I'm wrong, Don, but I don't know of any place where the use of pepper spray would constitute an aggravated assault, or an aggravated battery. It might be simple battery, but those are two very different charges.

Claude Werner:

If I had to face a charge of simple battery ... My knowledge of law 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. 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's a problem.

Don West:

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.

Don West:

You find terms like "menacing, brandishing, assault." And then in some places, I guess like Georgia and certainly in Florida, you hav "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.

Don West:

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.

Don West:

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. That 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-

Shawn Vincent:

Including often the loss of the right of carrying a firearm.

Don West:

Yes. And that's just the beginning of it, of course. Your point is so well made, Claude. 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 until it reaches deadly force, is that sort of No-Man's Land, that uncertainty, that ambiguity of, "How do you deal with your response to the threat that you're facing?"

Don West:

But if you have no other tools, 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:

I try to stay away from clichés, but there's that one cliché 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.

Claude Werner:

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 thinking about what our options are ahead of time, and developing some kind of thought about, "If this happens, I can do this, but I can't do this. If somebody comes up and slaps me, I can't shoot him for that."

Claude Werner:

But, as the mayor did, "If somebody comes up and gets in my face, I can paint him orange and then call the police. 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.

Claude Werner:

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. There are criminals out there that are looking to take advantage of people by surprise. Whether they're sitting in ambush, or coming up from the ... And their goal is to overpower them, and to do whatever their criminal intent is.

Don West:

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.

Don West:

I guess the idea is, you're suggesting that people should think about that well in advance of being 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.

Don West:

And if they can meet the force offered with the force they use to 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. 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, "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."

Claude Werner:

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 is conducted doesn't take that into account.

Claude Werner:

For instance, the effective range of pepper spray ... The most common units are the little keyring ones, and those really have a maximum effective range of about eight feet. 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 that, is eight feet.

Claude Werner:

So you have to recognize that, "If this person is getting close to me at that point ..." And the borderline in proxemics between the near-phase and the far-phase of what's called “Social Phase Space,” is seven feet.

Claude Werner:

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. If it looks like that person is going to need to be painted orange, I would rather they be painted orange at seven feet, as opposed to ...

Claude Werner:

It was reported with the Portland mayor that the guy was actually one foot away from him. 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. At that point, even if you spray someone and they get their hands on you, they can still start to hurt you. As opposed to, 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, then you sustain no injury at all.

Claude Werner:

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:

I took a class that Steve gave, and what impressed me a lot ... 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.

Don West:

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."

Don West:

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.

Don West:

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."

Don West:

But, from a lawyer's 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:

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, certainly tactics. The more of those we use ahead of time, it helps us in the decision-making process.

Claude Werner:

As you said, then that allows you as the attorney to present that in terms of why that became a reasonable decision on the part of the defender about why they did what they did.

Claude Werner:

I think that aspect of trying to preserve as many of our options as we can, and make the decision process clearer ... 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, "This was the 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.

Don West:

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 beyond a reasonable doubt. 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.

Don West:

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 other choice.

Don West:

Frankly, if you can do that, and it's clear, you probably don't get charged to start with.

Claude Werner:

At least with a reasonable prosecutor.

Don West:

I think the police have a lot to do with that. 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.

Don West:

A lot of prosecutors don't want to second-guess the guys on the ground. But you mess it up ...

Claude Werner:

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."

Claude Werner:

You've described exactly how that happens. 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," then what they present to the district attorney is likely to be something that's in your favor.

Don West:

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.

Don West:

To me, that was an anomaly. That one never should have gotten charged. There didn't seem to be anything pre-trial that could be done to talk sense into it. That one had to go to court, and fortunately our member prevailed and justice prevailed, clearly.

Don West:

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 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.

Shawn Vincent:

That said, thanks for listening in. We'll have more with Claude Werner next time. Until then, be smart, stay safe. Take care.



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