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Posted on December 23, 2020 by in Podcast

In Self Defense – Episode 71: The Defender’s Dilemma

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In Self Defense – Episode 71: The Defender’s Dilemma

Don West and Shawn Vincent are joined by Steve Moses to discuss the challenge of an armed defender facing a physical threat from an unarmed attacker. The conversation includes the legal risk of defensive display, the difference between de-escalation and disengagement, and how body language can communicate a defender’s ability and willingness to defend themselves. To learn more about Tatiana visit here website here. 

TRANSCRIPT:

Shawn Vincent:

Hey everybody, thanks for listening in. This is Shawn Vincent. Today, Don West and I are joined, as we often are, by firearms instructor, Steve Moses. And we’re going to have a conversation about something we’ve been talking about a lot lately, and that is what I’m calling the “defender’s dilemma.” And that describes the circumstance when an armed defender is faced with a threat from an unarmed attacker. Nearly all of the high-profile cases that we explore where the defender got into some legal hot water is because there is a disproportionate use of force. That is, the defender defended him or herself with a firearm and the perceived attacker was, as it turned out to be, unarmed.

Shawn Vincent:

We’ve been talking about defensive display as a less lethal option to actually firing your weapon to resolve one of these defender’s dilemma cases. Of course, there’s legal ramifications to pulling your firearm, even if you don’t fire it. And we’re going to talk with Don West a little bit about what those legal ramifications are, and whether or not you should always call the cops after a defensive display, even if no shots are fired. We’ll be joined by Steve Moses, who will talk about an interesting distinction, I think, between de-escalation of a conflict and disengagement. That is, not making an effort to resolve it, but just walking away. And that leads us to a conversation, something I’m really interested in over the last few conversations we’ve had about resolving these conflicts.

Shawn Vincent:

And that is, confidence in your movements, whether it’s in a defensive display, or even just your posture that would send a message to a would be attacker that you’re somebody that’s not to be messed with, that you’re confident in your abilities to defend yourself. And then finally, one of my favorite new topics is knowing how to take a punch. Sometimes a punch is not enough for us to justify the use of a firearm. And if you know how to take a punch without taking a lot of damage, that can open up a little bit of time that you might need to make a good choice before going to your firearm. So, here is my conversation with Don West and our friend, Steve Moses. Thanks again for listening.

Shawn Vincent:

Don, you’ve told me that one of the most frequent calls that we get from CCW Safe members who have a legal concern are about a defensive display. Is that right?

Don West:

Yes. I think statistically that’s the largest number of … that’s the biggest category of stuff that we get. Well, I was just going to comment that they are usually worried about a brandishing type charge, but convinced that was an appropriate response to the threat that they believed they faced. So the question for the police, the question for the prosecutor ultimately would be simply that. Was there a sufficient threat, articulable threat, to warrant the display of a firearm? Sometimes the context is road rage, and that’s pretty much always a recipe for disaster. When you start breaking that down, that’s usually just people angry and acting irresponsibly.

Don West:

But we’ve had several cases involved in parking lot scenarios, something happened. Or involved with motorists and pedestrians, or bicyclists. Things that prompted, first an exchange of words, and then a more aggressive act by someone toward one of our members. And then they had to evaluate not only how serious the threat was, but what the appropriate response would be. That’s almost always against an unarmed attacker, so to speak. Our member has a licensed right to carry a concealed handgun, and something unfolds where they are confronted by someone who is apparently unarmed, but very, very angry and agitated, and in the member’s mind poses a threat. And as that intensity, as the scenario escalates, the member’s in a position of having to decide what their tactical as well as legal options are.

Don West:

Yeah. And it can be something that you would never anticipate to happen. It’s not necessarily someone who has decided to commit a robbery or a sexual assault, and they’ve chosen a victim. The kinds of scenarios I’m talking about is, well, I’ll give you an example. You’re at a convenience store and you decide to pull into a parking space to buy some smokes or a bag of ice. And as you pull into the space, someone that had just filled up their car is walking into the convenience store and crosses right in front of you. So you almost hit the person, you don’t, but the person is angry because they thought you were careless and reckless and exposed them to the threat of being hit. So one thing leads to another, there’s an exchange of words. And pretty soon two people are standing there yelling at each other in a parking lot and trying to decide how far this is going to go.

Don West:

And probably each trying to decide who is the greater threat, and what, if any, defensive action, physical defensive action has to be taken. And we get those, we get a good number of variations of that. In many instances, there is a defensive display of some sort, or at least a clear communication. I wanted to talk to Steve about that, how gesturing toward a firearm, or putting your hand on a firearm, or even drawing the firearm but not pointing it becomes part of the communication of the notion that they perceive the other person as a threat and they’re willing to defend themselves. But they don’t think they need to use it yet. But back to the situation, we get those kinds of calls. And sometimes the police are called by a third party bystander that watches this unfold. Sometimes one or the other of the individuals involved in the standoff calls the police. But in many instances, ultimately, both people realize this was something that didn’t need to happen. There’s no injuries. So it’s kind of a no harm, no foul thing and they go about their business.

Don West:

But I get those calls from the members wondering what they should do. Should they call the police themselves? What happens if the police knock on the door? And frankly, in this day and age of everything being recorded, there’s a very real possibility that if somebody calls the police there’s going to be some video for someone to look at, and then someone can make the decision from a law enforcement perspective whether it’s worth pursuing.

Shawn Vincent:

How often do we have members go ahead and report the incident? And is that probably a good idea?

Don West:

I don’t want to sidestep the question by saying it’s really a case by case analysis, for me. Because, let me step away from my position as national trial counsel for CCW Safe and talk about a situation where a potential client would call me seeking legal advice in a jurisdiction where I was licensed to practice.

Shawn Vincent:

… as a private attorney in, say, Florida. And you just get a phone call from a private citizen.

Don West:

That’s right. That’s right. And the question is, should I call the police? And then of course, there’s going to be a discussion that has to be frank, honest, and very detail-oriented to get enough information to make the tough call. Because we know that if you make the call to the police, it’s going to draw attention to yourself, the police are going to respond in some fashion. And you are identifying yourself as someone who has effectively drawn a weapon on somebody. Now, if you are clear in your own mind, and if the facts seem to support that you had a legal justification to do that, then obviously you’re better off reporting it, assuming the other person will. It’s almost that cliche that whoever gets to the phone first is the victim. And-

Shawn Vincent:

Right.

Don West:

So there clearly are scenarios where it’s to your legal advantage to be the one who reports the crime being committed against you, that you had to defend yourself against. On the other hand, sometimes the facts are a little slippery. The justification for displaying a weapon, not very compelling. And from a tactical or strategy standpoint, again, focus specifically on advising somebody whether they want to get the attention of the police, or whether they may want to just simply hope that nothing comes of it. Sometimes, frankly, my advice is that you may be better off not calling the police and drawing attention to yourself, especially if there’s no real reason in your mind that the other person would call the police. That’s a slippery, almost subjective thing. I can tell you though, that if shots are fired, if it’s clear there was a violent act of some sort involved, violent beyond just merely the display of a weapon, you almost always want to get ahead of that.

Shawn Vincent:

But what’s interesting here is, we talk about once you’ve had this use of force event then it opens up all this aftermath. Our whole podcast, Don, was born out of the idea about the legal fight that you’ll have after the self-defense scenario, and how that can turn your life upside down and change everything. But I think, Steve, and I’m going to throw it back to you here in a second, though. That if you’re in this argument, that probably you could find another way out of, but now it’s gotten to the point where you feel threatened and you know you have your weapon on you, and it’s an option. That part of this thought process is, I just think it’s a great point, Don. You have to think about, okay, even if I pull this, is this a situation where I’m going to feel comfortable calling the authorities afterwards and saying that I had this encounter?

Don West:

Well you know, Shawn, that’s an important distinction. Because right from the beginning any discussion of self-defense as it’s characterized as an affirmative defense, which means that in your mind, factually and your belief legally, you were justified in using some degree of force to protect yourself. So in a sense you have legally acknowledged, number one, you were the person involved in the incident. That’s something that the jury instructions everywhere say the prosecutor has to prove. They have to prove that the person on trial is the person who committed the act.

Shawn Vincent:

Right.

Don West:

So you’ve already given that up if you’re just looking at it from a case analysis standpoint. And you are admitting that you were involved, that you used some degree of force, but claiming that you had the right to do it because you were threatened. And you were threatened to the degree that you were legally allowed to respond to it. So there really are no defenses left once you acknowledge that you were involved in this. Except that the classic definition of self-defense is that you were facing an imminent threat of force. It may have to sort it out later, whether that was an imminent threat of lethal force or not.

Don West:

But you are facing an imminent threat of force and that you believed you had no choice but to respond with some appropriate degree of force. So that focuses everything on you and your use of force. And frankly, the kinds of things we’re talking about, displaying a weapon in a public place, pointing a gun at somebody without being able to clearly articulate exactly why you felt threatened enough to warrant the display of a firearm can be pretty treacherous territory to navigate sometimes.

Shawn Vincent:

Steve, we were having a conversation one time about maybe an encounter in a store, or something like this convenience store scenario that Don drew for us. And you were talking about how you’re not going to want to have to look back at the security footage of some fight that broke out and shake your head about how you behaved. Do you remember that conversation?

Steve Moses:

Correct. Yeah.

Shawn Vincent:

So, for one, it seems like de-escalation is a real important thing that every concealed carrier has when it comes to getting involved in one of these random confrontations where tempers flare up.

Steve Moses:

Absolutely. And sometimes de-escalation doesn’t work because the other person is not willing to be de-escalated. But in many of those instances disengagement is still available. So if someone’s saying, how do I make myself as safe as possible when I’m out in public? Well, that’s going to be one, to avoid confrontations, whether armed or unarmed. Two, if a confrontation is imminent or there is a person that is encroaching upon you with the intent to engage you in a confrontation, if at all possible you need to disengage. There will be some instances where disengagement is not an option. I think I may have told you one time about during a road rage incident when another motorist followed me into a Daily Store and confronted me at the soft drink fountain. And that’s where our confrontation took place. And there was basically no place for me to go at that particular time than literally through the guy.

Steve Moses:

And so I didn’t have that option to disengage. And so avoiding those situations, I think, is critically important. Something that I might’ve mentioned to you guys earlier is that for listeners that have, perhaps in the past, have found themselves on more than one occasion, and having arguments or confrontations, or agitated discussions with other persons, now is a good time to say that I’m not going to do that anymore now that I understand some of the risks that go along with it. So again, de-escalation, disengagement, that’s always going to be my first response to a situation like you described.

Shawn Vincent:

Yeah. It’s interesting, and you draw a distinction between de-escalation and disengagement. And it makes me think we feel like a social obligation to resolve a verbal confrontation in a way that’s satisfactory for everyone. But what I’m hearing you say is, what would happen if you just had the ability to just turn around and completely just walk away from the person that might yell at you as you walk away? If they follow you and try to re-engage, now you know you’re in a different situation and the stakes are higher. But we’ve talked about that, like in the Strebendt case, the Finishing Machine. How he had that rear-end incident in the dark on this remote highway. And David Crofoot, who had turned out to be inebriated, kept approaching him. Strebendt backed up 80 feet, but then decided he wasn’t going to back up any further, and engaged the guy and ended up shooting him. But I think we talked about how there’s something psychological. He could have just kept walking away from it.

Steve Moses:

I’ve done this to people. I’ve done it to people. I just have turned. I didn’t turn around, I just walked off. And I usually walk at an angle, where I can keep my eye on the person so they couldn’t run up behind me and jump me. But I’ve literally just walked off. And there had been a few times when they’ve thrown a few profanities. But in other instances, they’ve just done nothing. They’ve just been so surprised by my response. And in some ways I think they perceive that as a win on their part. And I certainly perceived it as a win on my part because nothing negative happened.

Shawn Vincent:

Sure.

Steve Moses:

So doing something like that, in my opinion, is definitely an option for concealed carries.

Shawn Vincent:

And Don, do you remember that road rage incident we looked at, that had a Marine veteran who was a contractor who encountered that young guy? I think he’s down in Davie, Florida. He had cut the guy off on accident while he was talking to a friend on the phone, and the guy got all hot and came up to the intersection. And the Marine veteran, who had actually committed the traffic violation, decided he was going to roll down his window and in an attempt to apologize. But the other guy wasn’t in the mood for that and he approached him, had a gun, the Marine veteran drew his gun and we had a shootout that resulted in both guys dying. And our comment there was, he had an option to just drive away. And sometimes, especially in a road rage incident where it’s tough to communicate between cars, even the attempt to apologize or de-escalate isn’t as effective as just getting out of there.

Don West:

That’s right, because everything that’s done, every action and micro action is being, regardless of your intent, whether it’s truly intended to de-escalate, could simply be viewed as an escalation or an act of aggression by the other person. And in this particular instance, by rolling the window down making it easier to communicate, even if that communication was going to be an apology, may very well have been seen as a slight escalation. Maybe not. Maybe the other person that approached the vehicle after being cut off was intending all along to be violent. But you’re right, the choice there was simply to have driven off. And in the scenarios that we’ve talked about a little bit already today, some of these parking lot situations or street encounters with pedestrians, or bicyclists, seem to have those moments of truth in them as well.

Don West:

For example, in the hypothetical, we talked about pulling into a parking space and almost running into someone who was headed into the store to pay a bill or something for gas, that results in this stand-off, some critical decisions are made there. Getting out of the car is one. You don’t have to get out of the car. If you decide for some reason where you’re already out of the car, then there’s this verbal confrontation. Even if the person you’re arguing with wants to continue to argue, and even takes steps toward you, you still have options, you have the voice command options. You have the, as Steve has so eloquently discussed on other podcasts, the notion of a tactical retreat. If you’re standing beside your vehicle and this person is approaching you, and you know they’re agitated, you have the option to go on the other side of the vehicle. And I’ve asked people, why didn’t you just go to the other side of the vehicle to create some distance? To put something between you and the person until you figured it out, rather than going for your gun.

Don West:

You knew the person didn’t have a weapon. You didn’t know for sure how serious the physical threat was, whether it was just going to go to a… If it was going to go to striking blows from just being an argument. But you had the opportunity to create some time to give you some distance and evaluate it before going to the gun, which then creates the fear of the brandishing or the assault charge, what have you. And I can’t tell you how many times I get the response, “Well, I was just standing my ground. What about stand your ground?” And I think that’s a legitimate issue in most people’s minds when they are in a place where they have the legal right to stand their ground. But it turns out to be a pretty foolish decision when it comes to minimizing their legal risk, as also in minimizing the risk of physical harm. And I’d love to hear, Shawn or Steve, or both of you comment on that. Because I routinely have to tell people, yeah, legally you had the right to stand your ground . . .

Shawn Vincent:

But is that hill you want to die on?

Don West:

Good point. Yeah. Well said.

Shawn Vincent:

How valuable is that ground that you’re protecting? If it’s the access way to the convenient store, that’s probably a terrible sacrifice. And Steve, when you answer that question, Don had mentioned this earlier in our conversation and you touched on it here a little bit. Say your soda fountain scenario, right? Where now the disengaging is no longer an option. How do you approach that? And I think at this point, especially when you’re dealing with someone that is either unarmed or you have to presume maybe unarmed, there’s no visible firearm, right? People, even if he’s a carrier, you don’t know this yet. So whatever you do may be against an unarmed assailant.

Shawn Vincent:

I’ve been calling this in the articles, the “defender’s dilemma.” All the cases, almost all the cases where we see people, defenders, really get in trouble is ultimately they’re using a firearm against an otherwise unarmed threat, or at least someone not armed with a gun. And now you have to walk yourself through a spectrum of possibilities. And, what are the tools that you have as a . . . you’re a firearms instructor.  You’re a student and teacher of martial arts. You’re a proponent for less lethal force. Talk me through how you navigate a confrontation here where disengaging is no longer an option and some force may be required.

Steve Moses:

Well, I’ll tell you what, I’ll just go back to that particular incident in which I was involved.

Shawn Vincent:

Sure.

Steve Moses:

The guy confronted me. He started accusing me of cutting him off, acting inappropriately. And he was basically probably about three feet from me. And so I basically, what I did was I turned around and I faced him, spread my feet out a little bit so they were a little bit wider than my shoulders. Dropped my base a little bit, kind of set my balance so I was on the balls of my feet. Brought my hands up to chest level and said, “Oh man, I’m sorry, dude.” He was not happy with that, he continued. He took about a half step forward. And then I did something that in retrospect I kind of wish I probably hadn’t done, other than the fact that I just had nowhere to go behind him.

Steve Moses:

I wasn’t particularly terribly concerned about the physical threat he posed to me, I simply took about a half step up myself. And as soon as I did that, it scared him, he backed off, he walked away cursing at me and drove off. And so I didn’t have OC spray on me at the time. I did have a handgun on my person, of course, I didn’t want to use it. I also knew that I knew how to effectively block a punch using default cover, I can touch on that later if you’d like. I knew how to tie him up. I was pretty sure that I could either take him down, and if I couldn’t take him down, I was confident that I could grapple with him long enough to get control of his arm closest to my handgun and actually bring my handgun to bear and use it from a retention position.

Steve Moses:

So I had all of those options available to me, none of which I wanted to use. And the situation just pretty much resolved itself. And so what I urge other concealed carriers to do is, first understand that if you cannot disengage, you cannot de-escalate, then you’re going to have to be somewhat in a responsive mode. If you feel like at that exact moment that you need to respond with some use of force and you believe it’s absolutely necessary and you have no other options, that would be to go ahead and if you’ve got the distance and the time, OC. I would always deploy OC from my support hand, never my strong hand. I know some people that argue with that. Basically, I don’t like to get my less lethal tools and my lethal tools … I want to keep those separate in different hands if possible.

Steve Moses:

And that could have been an option. The same thing is true for many of these concealed carriers, especially the older ones that say, “Well there’s no way I could take a punch, it would just kill me.” Well first of all, that’s not necessarily true. There’s been instances where people have, exactly as Don said, they produce their weapons, they were charged with brandishing because they felt like the other person might punch them. And they were criminally charged. And in some cases, I believe they were indicted and maybe even found guilty. So having the knowledge and the skills to, okay, I’ve got my hands up here. I know how to block a punch if a punch does occur. I’ve got a good chance that I probably won’t get knocked down. I probably won’t get knocked out. And then that in and of itself would justify going to a more serious weapon. So I’m kind of rambling here. I don’t mean to get off in the weeds.That’s my initial tip.

Shawn Vincent:

One thing I took there is you indicated that in retrospect you regret taking that little half step forward. I think the regret would be that you potentially had escalated the physical conflict when you did that, right?

Steve Moses:

No. It was the optics. I was more concerned that maybe a third party would perceive that I was willing to engage in mutual combat with this guy, when that was actually not the intent. It was more so to steal space from him. There are a lot of people that practice Brazilian jiu jitsu, and other defensive combatives will say that there’s three ranges in which a confrontation can take place. A physical confrontation. One can be at extremely close range, one can be at intermediate range, and one can be at long range. Well at intermediate range, which is where I was, that’s actually where in my opinion I was the most vulnerable.

Shawn Vincent:

I got you.

Steve Moses:

Because that other person can basically, if I’m not in a position to see him initiate that move, I don’t have my hands up. If he launches a punch at me, probably he’ll get inside my reactionary gap. And if he does, he may very well land a punch on my head, and indeed, either concuss me or put me in a position where I can’t effectively defend myself. So by stepping forward, basically I negated his ability to do that. I mean, a professional boxer probably with a good short hook could probably do that, but the average person could not. But the concern was, I knew that was probably on video. I knew there were other people watching. Just the optics, that appeared to be aggressive. Whereas, I would always encourage a concealed carrier, anytime that they’re confronted with someone like that, if you have the ability to take an initial step back it, in my opinion, that conveys, okay, I’m trying to get away from this guy. I’m trying to retreat. I’m not voluntarily engaging in combat with this person.

Shawn Vincent:

Yeah. But I read … part of that is that as a trained martial artist, and a firearms instructor. Everything that you do, all your movements are done with confidence. My read on that is this guy, as soon as you took a certain posture, knew that you were someone who could handle himself. Did you think he got that communication?

Steve Moses:

Yes. Oh yeah. He actually stepped back and put his hands up and goes, “Don’t touch me.”

Shawn Vincent:

That’s a good sign.

Steve Moses:

So I kind of felt like, well, okay, that’s confirmation that he was basically concerned about his own personal safety at that time.

Shawn Vincent:

And we look at the McClatchy footage, that’s the laundromat in Mississippi. Right? And we see her, she had a low ready stance with her gun. When the aggressor approached her, she pulled it up. I think you can look at that and tell by the confidence of her movement she had done probably some training, right?

Steve Moses:

Yes. I could see from the perspective of the aggressor that they thought, I may get shot here.

Shawn Vincent:

Sure. And we talked about about the Alexander Weiss case where the perceived aggressor seemed not to believe that it was even a real gun, by the way he handled it, and actually dared him to shoot him. I’m wondering, not everybody has the physical capability to become trained in martial arts. But just personally, Steve, if you’re someone who’s decided you’re going to make an investment and get a permit and be a concealed carrier, it seems to me that having a little bit of training in some sort of martial arts, not a bad idea.

Steve Moses:

It very much is. For so many people they just say, physically, there’s no options for me to train, my age and my infirmity would make it risky for me. And I’m like, okay, I completely understand that. My particular school, we have a monthly class; it’s called Contact Distance Defensive Skills. We’ll be starting those back up in probably January. And this is not a pitch for my class. But what we do is we encourage students that are concealed carriers of all ages, and I’m talking about people in their 60s and their 70s, to come train with us. And basically we show some fundamental things like, okay, how do you default block a sucker punch? This is based upon a system that I initially learned from Craig Douglas. I’ve also taken classes from Cecil Birch and Jerry Wetzel, a number of great guys.

Steve Moses:

And basically it is a system where you encircle your head in such a manner. You drop your weight, you lean forward so that the chances that a punch thrown from any angle are not going to hit you on a vulnerable part of your head and knock you down and knock you out. Again, I would just encourage readers to check out, let’s just start with Craig Douglas Default Cover. See what he teaches. I almost describe it to my students is basically you’re just encasing your head in a helmet made up of flesh and bone. And just being able to do that and know that you can survive someone that comes up there and throws a punch at you, that’s perhaps younger, more physically powerful, definitely more aggressive than you.

Steve Moses:

I think that what that means is that gives you a little extra space to not draw that handgun prematurely. So I believe that this is something that anybody that wants to learn how to do this, for the most part, with the exception of those that are elderly or are just in serious physical condition, can learn that. I think that’s a critical part of that. And just that ability to do that in and of itself, I think that’s just a huge thing.

Shawn Vincent:

All right, guys, that’s the podcast for today. Thanks for listening through to the end. This conversation went on for a little while, and we are about to get into the discussion about whether it’s ever appropriate to fire a warning shot, so next time we’ll start with that. Until then, be smart, stay safe, take care.