In Self Defense - Episode 79: Trigger Points - CCW Safe National | CCW Safe Weapon Liability | CCW Safe Defense Attorneys
In Self Defense - Episode 79: Trigger Points

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In Self Defense - Episode 79: Trigger Points

Steve Moses joins Don West and Shawn Vincent for a conversation about defenders in high-profile cases who have a history of conflict, and they discuss how concealed carriers who understand their own hot buttons can avoid unnecessary confrontations.


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TRANSCRIPT:

Trigger Points

Shawn Vincent:

Hey everybody, this is Shawn Vincent. Thanks for listening in. Not long ago, Don West and I sat down with Steve Moses, and talked about a wide range of topics relating to self-defense, and at the end of our conversation, we revisited a couple of cases that we've discussed in the past, where the defenders had a history of conflict that came back and haunted them during their prosecutions.

Shawn Vincent:

I think that's a good point to hit, that there are some people who are what I might call “conflict magnets.” They tend to seek out conflicts, or, if nothing else, conflicts often tend to find them. So we'll talk about a couple of those cases, and we'll talk about the judgment and practice of conflict avoidance that can help concealed carriers look out for potential danger zones, potential conflicts, and avoid self-defense scenarios before they ever get started. So here's my conversation with Don West and Steve Moses. Thanks for listening.

Shawn Vincent:

A final thing I wanted to talk to you guys about today, unless you have other topics is... We've talked a couple of times about Sheri McClatchy in Holly Springs, Mississippi who had that encounter... She was a laundromat attendant and the angry patron came out, and she had a defensive display that successfully resolved that confrontation without her being charged with anything.

Shawn Vincent:

So, as I write about these cases, I revisit them sometimes to see if anything's happened in the case. Is there any new article that I missed in the past? And I discovered that Sheri ran for the Holly Springs City Council, and somewhere in the course of the campaign, in a parking lot, she had a encounter with her opponent in the race, that got into a shouting match that ended up with a fist fight, and Sheri McClatchy got punched in the face. They show her bruises on the news. She got beat pretty good.

Shawn Vincent:

If she were carrying at that point, she had the amazing discretion to not use her firearm. She's not facing any problems there. But it occurred to me, we talked about the finishing machine, Gerald Strebendt -- he had gotten in trouble for road rage incidents in the past. He was subsequently arrested after he resolved the self-defense case and had served some time in jail.

Shawn Vincent:

We've got Ronald Gasser, he was a guy who shot former Jets NFL player Joe McKnight after a road rage incident outside of New Orleans, we find out that he had gotten into a fist fight at that very same intersection a couple of years before. We have Michael Drejka who shot Markeis McGlockton in the parking lot in that Clearwater convenience store, over the handicap parking spot, we find out that he had gotten into verbal altercations in that same parking lot in the past.

Shawn Vincent:

I'm sometimes not surprised that, even in cases where we think that we can create a good self-defense argument for the defender, that these are folks who... They have a history of... If not seeking out confrontation, confrontation sure seems to find them. In your training career, Steve, have you encountered folks that you were concerned had that capacity for finding conflict?

Steve Moses:

Oh, absolutely. Absolutely. If they discuss that with me, I really go to some effort to try to dissuade them from acting upon their emotions in the future. I tell them that, "Hey, I understand you have emotions, you have feelings. You can't eliminate them, but you don't have to act on them. And you need to understand that there may be that one time when you go ahead and you act upon it, and circumstances that are beyond your immediate control take over, and you find yourself in a very, very bad place." And so I think that's critically important to understand that if you've got a predisposition to doing that, especially now that you're armed, you need to stop that immediately.

Shawn Vincent:

Don, in your long and illustrious criminal defense career, have you found that people have patterns that repeat? If you have a client, are you ever shocked to find out that they've had something in their past that resembled the issue that you're helping them with at that time?

Don West:

Oh, sure. I think that's the hardest thing, isn't it, to change, is yourself. You may not have had much ability to keep yourself from being like that. I don't know how our personalities get defined. It's the nature versus nurture. I agree with Steve that a lot of times it's recognizing that you have a certain trait or propensity, and then making special efforts to control it, to not act on it, to know that your initial reaction sometimes is not going to be the right one.

Don West:

But I think, largely, if I'm going to find one common characteristic that would help define a lot of my clients over the last 40 years, however they came to have it is their own unique story, but it would be some impulse control problems. People that are unable to either process information appropriately, to maybe understand what other people's intentions are.

Don West:

Sometimes, it's just a lack of regard for the rules of society. But usually, it's those quick temper guys, the ones that flare up, that are always looking for the confrontation, because they think everyone is against them. Now, obviously that's general pop psychology, but I can tell you that that kind of knee jerk behavior gets you crossways with the law pretty quickly when it comes to inner social interactions. Those are the guys that seem to either pick fights or wind up on the other end of one.

Don West:

I do want to say this though, since you asked me about professional career; my professional career is not only, of course, dealing with my clients that have been charged with something, in large part of their own making. Not always. Sometimes there is that truly innocent person that just got picked out of a lineup incorrectly, but usually it was of their own making.

Don West:

But I can tell you this, that in handling thousands of cases over the years in the Central Florida area in particular, I see the same cops, over and over as well, that have, in addition to the underlying basis for the arrest, whether it was a DUI or a shoplifting or who knows what, always seemed to have a companion charge of resisting arrest with violence, or opposing a police officer, battery on a police officer. Those seem to be the guys that enjoy the conflict and the confrontation with the people that they're arresting.

Don West:

I have friends that are police officers. I know other police officers that can go a year or two and never arrest somebody for resisting arrest, and then others that seem every week they've got a new charge, or every third person they arrest for some reason wants to fight them. And I have to think that's sort of the oppositional behavior that Steve is talking about, but on the other side of the law.

Steve Moses:

Yes.

Don West:

Steve, I'm curious, with your law enforcement background and just your experience, do you know those guys that are carrying a gun and a badge?

Steve Moses:

I know some of them right now.

Shawn Vincent:

Would you say they're highly punchable, Steve? Would you?

Steve Moses:

Well, I'm just saying that... That's just not a good thing to do. There's just so many things that go beyond just the whole legal thing, moral and everything, and it just doesn't benefit anybody. As a matter of fact, the thing that it does for law enforcement officers is it tends to give all of us a bad name. Now, I say “all of us”; I'm a former deputy. Basically, a lot of people had problems with the police as a whole, because of the actions of individual officers over the years.

Shawn Vincent:

Right.

Don West:

That's in the news now, right? Every day. Every day, you're you're looking, and the actions of the police officers, their response to some event is what's being focused on, whether that response was appropriate, whether it was excessive, whether it was vicious and violent, appreciating that, every day, those guys go out there, risking our own lives. At the same time... Well, we've already talked about that.

Shawn Vincent:

Don, you encountered a juror one time on a self-defense case, who was a proud gun owner, but he told you, during the jury selection process, that he wasn't comfortable with himself carrying his gun in his car, because he knew what a hot-head temper that he would have when he encountered people in road rage incidents. You remember that story?

Don West:

I do. That was an eye opening moment for me, because as you said, we were in the middle of jury selection. I was representing a young man charged with murder, and our defense was self-defense. The deceased, the shooting victim, was unarmed, so I was representing a man who shot and killed an unarmed man and claimed self-defense.

Don West:

That was the context, and I was picking a jury, looking for those people that of course believe first of all, in the right to self-defense, and then wanting to explore their understanding of firearms, and also their personal views about how they conduct themselves. I was talking to this fellow who was saying all of the things that, as a defense lawyer defending someone charged with murder and claiming self-defense, wanted to hear.

Don West:

I was checking off the boxes as fast as I could, until we started talking about carrying a gun in the car. In Florida, you can possess a firearm in a vehicle without actually having a concealed carry permit, if you do it in a certain way. Lots and lots of people in Florida have guns in their cars that aren't necessarily permitted to carry them concealed outside.

Don West:

We were talking about it, and it was exactly as you said. I was talking about carrying a concealed firearm and it was so important to him to be able to defend himself and protect himself, but in a car, it was a completely different matter. He said, "I just know myself too well. I know I can be a hothead, and I know that when tempers flare on the road, when some idiot cuts me off or challenges me in some way, I can't trust myself not to reach over and open the glove box and wave a gun around."

Don West:

So he said the way he solved that problem for him was he just didn't have a gun in the car. And I appreciated his candor. I thought that was an astounding perspective and insight, frankly, but it was kind of an odd story. That connects in the way that you're talking about, right? To knowing yourself first.

Shawn Vincent:

Yeah. And I want to ask Steve. Steve, one time, you mentioned to me that if you're a responsible concealed carrier and you're trained and you're permitted, that one of the best practices a lot of concealed carriers have is to conceal carry almost all the time, wherever it is legal and appropriate to do so.

Shawn Vincent:

But I'm also wondering... Our friend, Bob O'Conor, who was in law enforcement for many years, talks about the “warrior mindset,” that when you carry, you have to be in this extra mindset that you are responsible for that weapon and that you have now the power to make life or death decisions, and that you can't walk into a situation in public the same way an unarmed person can. You've got that responsibility on you.

Shawn Vincent:

Is it ever okay for a concealed carrier, like if I want to go to a barbecue and I plan on having a few extra cocktails that day, and I'm like, "You know what? Today's not a day for this. I don't want this responsibility today." Or this guy who decides, "You know what? In the car, I just don't trust myself, but I know at home or at my office, I do." I'm just curious what your thought is on that philosophy.

Steve Moses:

I completely agree. In most states it is illegal for a concealed carrier, who lawfully possesses a permit, to go into a bar where most of the revenue is generated from the sale of alcohol. There's a reason behind that, and I think that should be respected. The fact that if I want to go have a few drinks, and I know that, one, that might affect not only the way I think, but also the way that the law looks at me afterwards, if I have to defend myself and everything I have done was indeed defensible, I think I've made it more difficult for my lawyers to do the work they need to do. So I'm a hundred percent in favor of your philosophy there.

Shawn Vincent:

If I decide I have a day where I want to have bad judgment, I can just leave my gun at home that day.

Steve Moses:

If you decide to have bad judgment that day, please do, Shawn.

Shawn Vincent:

Yeah. Right? And I guess to Don's point, we talked about people who have impulse issues, but I don't think there's a quantum switch someplace where someone's got it and someone doesn't. We all have our points. We all have our things that will provoke us. If I feel my children are threatened, I start acting in a way that's different than I do when it's just me. I find myself surprising myself with how I act.

Shawn Vincent:

We were talking about it with Tatiana Whitlock, about going with your gut, but if you've never been in a life or death situation, or you haven't been in the scenario that you haven't imagined, your gut can lead you in the wrong place. And that's where training and this sort of visualization and these conversations that we have come into play. What would the responsible thing be to do?

Shawn Vincent:

And the real conundrum with this whole self-defense conversation is, we're preparing for a situation that we might potentially never possibly be able to imagine, right? These scenarios come together in such strange ways. And I'm thinking about someone who can have a short fuse sometime. We talked earlier about these thresholds, and Steve, about voice commands first, and then defensive display. All these are less than lethal options. All these things that we have.

Shawn Vincent:

Don, you and I have talked over and over again about the choice before the choice, that when you have to make that life or death decision, you don't have time to go through a whole litany of conversations and legal considerations. You have to make a choice to save your life. But when we see Gyrell Lee decide to go to his car and get his gun just in case this guy who's been harassing them comes around again, he's made a choice where he's opening himself up to a self-defense scenario.

Shawn Vincent:

When Ted Wafer opens the door to Renisha McBride, he opened himself up to the self-defense scenario. And so I think when it comes to knowing ourselves and how we're going to behave in situations that we've perhaps never been in our lives, if we know in advance, these things tend to come... They can come quickly, but they come in a couple of steps. We have choices that we can make before the decision to pull the gun.

Shawn Vincent:

And those choices, what, Don, a prosecutor in a court of law would call that a “moment of reflection,” right? Those are opportunities for us to say, what are my motives for this? What are my other options? Steve, you talk to us all the time about time and space. Any choice that you can make that provides you time and space gives you more time to eliminate ambiguity, to explore other options. And then if those options run out, Don, we've talked about, you've given yourself a lot of reasonable steps that you took before using the lethal force that would bolster your claim to a law enforcement officer or a prosecutor or a jury in a court of law.

Don West:

Well, it has to be based on training as well as visualization, personal reflection, experience, all of that. But it seems to me it still has to come back to training. And the stuff that Steve shares with us, not just from his own personal experience and translating that into everyday lessons, but from the work he does helping to train people so that they know where those marks are, as I've mentioned before, I'm usually the guy who gets the call from the CCW Safe member, if not directly, usually before it's all done, I'm talking with that member, helping coordinate legal resources for them.

Don West:

We have a large membership that is even active law enforcement or retired law enforcement, certainly retired military as well. And I can almost see those patterns that you're talking about, Shawn, the guys that seem to be getting in trouble with brandishing, going to the gun too quickly, not fully understanding that there are decision points or other options, arming themselves with less lethal weapons, are the people that are pretty new to carrying handguns and pretty new to the self-defense idea.

Don West:

The guys that are retired law enforcement, I don't see that with; they know there's a continuum... What's the word, Steve? Is it continuum? Use of force continuum?

Steve Moses:

Use of force continuum.

Don West:

They know there are steps along the way, that you have other options, if you know what to do and how to deploy those other things that can diffuse or de-escalate or give you the space to get away. And there's no substitute for training and experience, it seems.

Steve Moses:

Getting back to something that you said earlier about having a few drinks and then saying, "Well, that may impact the way that... And correct me if I'm wrong, that something may happen, it may have maybe a different effect on myself emotionally." For those persons that would say, "Well, I'm always in control of my emotions." I may say, my retort to that may be, "Well maybe that's true, but there's probably a very good reason that you do not drink and drive."

Steve Moses:

It's not necessarily that you're concerned about your emotions being impacted by what's going on around you, but the fact that you realize that probably your reaction times are impaired. There's probably a greater chance that you might overlook something that you wouldn't have before. Your responses would be delayed. And these also are good reasons for not carrying and going out and drinking, especially in any way that's more than...

Steve Moses:

And again, I'm not one to just say, "Well, just have one and stop," or something like that. Although, I think that would probably be a good idea. I would just not put myself in a position where I'm armed and I'm drinking to the point where I feel like my responses be impaired in any way, my emotions may be hijacked, or I may have a very difficult time explaining what happened after I was forced to defend myself. That's just my take on that.

Shawn Vincent:

You've told us before, that if it's not safe to go there without a gun, it's not safe to go there with a gun.

Steve Moses:

Correct.

Shawn Vincent:

Right. And we'd looked at the Kyle Rittenhouse case, and he had an obvious rifle that, in my opinion, after the initial shooting, put a real big target on his back and caused him some problems as he was trying to go for help. Do you visualize circumstances where maybe it's safe to go there without a gun, but it's not safe to go there with a gun? I'm thinking about a case that I did, where a guy went to confront his girlfriend's other boyfriend, and there was some property involved, and he had a reason to confront this guy, but he took a gun. And surprise, surprise, he ended up shooting that guy after an argument went wonky.

Shawn Vincent:

My contention is, he was putting himself into a situation where there is a potential conflict. He didn't have any reason to think that would result in a deadly conflict, but it didn't look good that he went to his girlfriend's lover's house with a gun. They charged him with murder. I mean, since we've talked for a while, I'm just throwing that one out there. Have you had any experience with that, or you see circumstances where bringing a gun into a situation increases your risk?

Steve Moses:

I've not had any experience with that, nor people that I know, but I am aware of that. And again, it's like, "Oh, try to avoid a situation where confrontation is going to be a potential," because very much so it could be the other person that decides to use a gun on you. And so I'm just trying to look at that from every angle and just do anything that I can to mitigate risk.

Steve Moses:

That's something that I pound on very heavily with family members and children and grandchildren now. So, I think that's spot on, but definitely avoid those situations. You made a very good point there. Bringing a gun actually caused the situation, possibly, to escalate, or it gave you an option that you didn't have otherwise. So I can't argue with anything that you're saying there.

Shawn Vincent:

Yeah. So it just comes down to judgment and training. But every time we have these conversations, Steve, if I'm left with a stronger sense that training is key for everyone who's taking on the responsibility of carrying a gun. Training is going to give you more confidence, it's going to make you more effective, it's going to help you avoid potential use of force incidents. And then if, God forbid, you find yourself in one, you're going to be more confident that you're justified. Don, I think frankly, most of the cases that we've worked on are our folks who didn't have real good training. It seems like the people who have good training don't get nearly as much trouble.

Don West:

They don't get in trouble. That doesn't mean they don't get involved in those kinds of confrontations where they have to make decisions to use force, and how much force do you use, but they have a better data bank to assess it, and a more reasoned response. When I tell you about people that get in trouble, and these brandishing cases and these assault cases and those sorts of things, it doesn't mean that we don't have members who are involved in legitimate self-defense situations, including lethal ones.

Don West:

We've had a number of lethal self defense cases where no one was arrested. No one was charged. No one was prosecuted, because from the beginning, it was clear that all of those boxes were checked, that the fear was reasonable, that the threat was imminent and significant, and that the response was proportional, even if that response was the use of deadly force.

Shawn Vincent:

That's actually good to hear, 'cause we talk about doom and gloom on this podcast all the time. And we talk about cases where things went wrong, but the truth is, the stories where the defenders acted reasonably and appropriate, really rarely make headlines. And frankly, the lessons aren't as clear in those cases because someone's used good judgment. There we are.

Don West:

Yeah. The police call those, I suppose, awful but lawful. Someone has died, it's a tragedy no matter what, but the conduct warranted the response, and the outcome, while sad, was not illegal, and that the defender acted within the bounds of the law to save his life, and there was no basis for an arrest, no basis for a prosecution.

Shawn Vincent:

Steve, do you have any final thoughts for our conversation today?

Steve Moses:

Yes I do. And that is, to all of the listeners and readers that basically listened to us talk about avoiding situations in which we're forced to use force, and if we are forced to use force, to indeed do it lawfully, does not mean that we would discourage anybody from doing exactly that if the situation called for it. It's just there's no need for us right now to talk about the most effective ways to physically win a confrontation with another person, lethal or otherwise. We understand that needs to be done.

Steve Moses:

I and the instructors that work with me and all the other instructors that I know, that I would say, "Those are good teachers," we spend the majority of our classes showing people how to effectively defend themselves, and we encourage them to do so if the circumstances are such. It's just that, basically, we would like to see our readers and our listeners avoid drama of any kind.

Steve Moses:

More often than not, a lot of that comes from making mistakes that don't actually involve them being in a lethal force situation. And sometimes, when they do, the mistakes they've made have basically just not only ruined their lives, but have just really had a negative impact on the lives of their families and friends. That's just the last thing I would like to say.

Shawn Vincent:

Yeah. Don, on that point too, I think it's worth saying that we are often, from a legal perspective, critical of the defenders that we look at, but that is only in the context of trying to draw lessons for concealed carriers. I think there's not a case that we've talked about that you and I wouldn't have been happy to work on and defend zealously in court. Is that fair?

Don West:

Well, yeah. What we've talked, about an underlying theme is that there's two fights. There's the first one, that you save your life, and the second one, that you save your freedom, that you're defending yourself in court. And first and foremost, you need to win that first. To the extent that you can win that first fight and also be cognizant of the risks in the second fight, and minimize those, that you're sure there's lots of space in those decisions, that you've done everything you can to de-escalate, to avoid, to retreat tactically, that when it came time to defend yourself against that imminent attack or great bodily harm or death, and you did so decisively, that you did so within the bounds of the law.

Don West:

That's the best outcome, isn't it, that the best fight to win of course is the one you never have. But if you have to, you need to win, but you need to win the second fight too, and you can do that by the training and the experience that allows you to understand where those legal boundaries are.

Shawn Vincent:

All right. That's our podcast for today. Thanks again for listening through to the end. Next time, we're going to go back to basics. We're going to revisit one of our touchdown cases, this time with input from Steve Moses for his tactical point of view. Until then guys, thanks for listening. Be smart, stay safe, take care.



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