Always Be The Defender

Legendary lawman and use of force instructor Chuck Haggard says “the goal of self-defense is to break contact” with an attacker. It is not to win a fight or to kill the bad guy. The goal of self-defense is to come out of a potentially violent confrontation unscathed. Sometimes that means fighting, but more often, it means de-escalation and avoidance. Firearms instructor Tom Givens, founder of the famous Rangemaster Tactical Conference, says, “I give people a double-your-money-back guarantee that you’re going to survive every single violent confrontation that you don’t get in.” Criminal defense attorney and National Trial Counsel for CCW Safe Don West says that making an effort to de-escalate or avoid a potentially violent encounter not only increases the likelihood of surviving but also of escaping any legal liability associated with a use of force incident. 

The core principle of self-defense is that the use of deadly force is only justified when a defender has a reasonable belief that they face the imminent threat of great bodily injury or death at the hands of an attacker. In our last article, we explained how a defender who starts a physical confrontation, a “first aggressor,” or a defender who baits an attacker into a fight, a “provocateur,” can lose the right to make a legal self-defense claim. If a judge rules that the defender in a homicide case was legally the “initial aggressor” or the “provocateur,” then the court can deny the defendant’s lawyers the ability to argue self-defense at trial, and they can refuse to provide jurors with a self-defense jury instruction.

Even in cases where the court permits defendants to argue self-defense, if the jury hears evidence that the defender did anything to initiate or aggravate the conflict that resulted in the use of deadly force, it can erode jurors’ sympathies and lead to a conviction. We’ve explored the case of Michael Drejka who shot a man after starting an argument with a motorist for parking in a handicapped parking spot. We’ve also written about Markus Kaarma who shot an intruder after intentionally leaving his garage door open with the hopes of exacting revenge on a burglar who previously struck his home. Drejka’s attacker violently and illegally shoved him to the ground before the defender resorted to deadly force, but the jury held him responsible for unnecessarily initiating the verbal confrontation that lead to the fight, and that contributed to their guilty verdict. Although the intruder in the Kaarma case was breaking the law by trespassing, evidence that Kaarma intentionally lured the intruder into his garage devastated his case at trial, and a jury convicted him of intentional homicide. A judge sentenced Drejka to 17 years in prison. Kaarma got 70.

If it’s true that initiating or aggravating a confrontation that leads to the use of deadly force can damage a self-defense claim, it is also true that a defender who fails to take obvious steps to avoid or de-escalate a potentially fatal encounter can lose the sympathy of a jury in a self-defense case. On a cold Minnesota winter day, Alexander Weiss was drawn into a confrontation that turned deadly, and he faced trial – twice – for his use of deadly force because he passed up a clear opportunity safely escape. 

While on his way to referee a youth basketball game, Weiss witnessed a car slide through an icy intersection and crash into a curb. Intent on helping, Weiss pulled over in front of the vehicle, but the other driver didn’t notice him. When the driver stepped on the accelerator to leave, he crashed into Weiss’s parked vehicle. Weiss exited his vehicle to discuss the accident and found the passenger of the other car had gotten out and adopted an aggressive posture with balled fists and an arched back. When Weiss suggested involving police, the passenger threatened to kill him. Weiss went back to his car. He had an opportunity to drive away but he feared getting in trouble for leaving the scene of an accident. Instead, he grabbed his cell phone and a pistol, and he re-engaged the aggressor. The driver of the other vehicle had joined the passenger outside the car, and both confronted Weiss. When Weiss presented the pistol, he claims the other driver tried to take it away. The driver even dared Weiss to shoot. Afraid and outnumbered, Weiss fired a single fatal shot.

Olmsted County Attorney Mark Ostrem prosecuted Weiss. Ostrem told jurors, “He went back to his car … and then he came back out. That’s where things went wrong.” Faced with an aggressor, Weiss had successfully broken contact when he returned to his car, which is the goal of self-defense according to Chuck Haggard. Don West says, “There is nothing to suggest that Weiss’ car was disabled. He could have driven off at any point that he wanted to.”  Because Minnesota is a duty-to-retreat state, Ostrem was able to argue that Weiss had a legal obligation to try to leave before resorting to deadly force. At trial, Ostrem said, “The law requires that deadly force be employed only after attempts to avoid danger have been made and there is no other option.”

Weiss narrowly escaped conviction. The jury in his first trial failed to reach a unanimous verdict, and the judge declared a mistrial. Prosecutors tried again, and months later, Weiss faced trial a second time. It ended with another hung jury. Although Weiss avoided a guilty verdict, he endured a long prosecution and paid the emotional and financial costs of two trials. His life was turned upside down. The high-profile nature of the case left his reputation in tatters. Even when acquitted, defendants don’t win a criminal prosecution; they merely survive. Weiss’s life would be immeasurably better had he never exited his car for that second time.

In Pennsylvania, there is no legal duty to retreat, but the fact that the defender in a high-profile shooting there made multiple attempts to break contact with an aggressor before resorting to deadly force saved him from the kind of grueling prosecution Weiss endured. Investigators chose not to release the shooter’s name, so we’ll refer to him as “the defender.” A man named Alan Womack played opposite the defender in a pick-up basketball game at a gym in King of Prussia, Pennsylvania. Womack accused the defender of committing repeated “traveling” fouls, and he got angry and threatened to shoot the defender. Not wanting a fight, the defender quit the game and went to the locker room. When the defender left the gym, he discovered Womack had been waiting for him. Womack followed the defender into the parking lot, shouting obscenities and making threats. When Womack got close to the defender, the attacker pulled a pistol and chambered a round. The defender pulled a pistol from his gym bag and fired first, fatally wounding Womack.

Law enforcement conducted a thorough weeks-long investigation, but ultimately they declined to charge the defender with any crimes. In a public statement, Montgomery County District Attorney Kevin Steele said: “At no point in the encounter did evidence reveal that the shooter provoked the decedent or raised the level of force. If he had, the self-defense claim would have been invalidated. In fact, the defender did just the opposite, trying several times to de-escalate the situation.” Don West says that the shooter in the Womack case “was always the defender, from the beginning to the end — right until he believed that he had no choice but to use deadly force in response to a threat.” 

Pennsylvania is a stand-your-ground state, and Minnesota, where Alexander Weiss’s case took place, is a duty-to-retreat state. In duty-to-retreat states, defenders have a legal obligation to take reasonable efforts to de-escalate or escape a confrontation before resorting to deadly force. In stand-your-ground states, the legal obligation to retreat is removed in certain circumstances. Nonetheless, when a defender passes up obvious opportunities to avoid using deadly force – even in a stand-your-ground state – or if they fail to attempt to de-escalate a confrontation, a jury can still use that behavior as evidence that speaks to the reasonableness of the shooter’s actions. 

Conversely, even in a stand-your-ground state such as Pennsylvania, District Attorney Steele’s statement illustrates that a prosecutor can still file charges against a defender who appears to have provoked a confrontation or raised the level of force. The Womack shooting made headlines, and Steele’s statement hints that the elected District Attorney felt he had to publicly justify his decision not to file charges. By making so many efforts to retreat, the defender in the Womack case gave the prosecutor all the evidence needed to justify his decision not to prosecute.

The lesson for concealed carriers is that whether you live in a stand-your-ground state or a duty-to-retreat state, you’ll want to give the prosecutor all the evidence they need to justify not filing charges against you should you ever have to use deadly force in self-defense. Once you are charged, enduring a criminal prosecution — even if you are ultimately acquitted – is a nightmare that will upend your life. For armed defenders who live in a duty-to-retreat state, remember that you have a legal obligation to take reasonable steps to avoid using deadly force. For those who live in a stand-your-ground state, acting as if you were in a duty-to-retreat state makes for a good personal self-defense policy. If you make a clear effort to avoid using deadly force, you could escape criminal charges in the wake of a self-defense shooting, and if you end up facing prosecution,  you’ll be more likely to get an acquittal.

Tom Givens knows that many concealed carriers bristle at the word “retreat.” He prefers the term “preclusion” to describe an armed defender’s efforts to avoid a deadly confrontation, and he says responsible concealed carriers have a “duty to preclude.” Tom says, “Even in states that have a duty to retreat in the statute, one of the things that so many people miss is it says ‘if you can retreat in safety.’ You’re not required to back away from somebody that’s shooting at you … ‘Retreat’ doesn’t necessarily mean ‘running away,” it means disengaging from what is becoming a dangerous situation.” Self-defense laws are different in every state, and as a concealed carrier, you have a responsibility to understand the current laws in your state, but no matter where you live, if you adopt a duty-to-preclude mindset, you’ll likely avoid use-of-force scenarios, and even if you can’t, you have a better chance of making a successful self-defense claim in the aftermath of a shooting.