Establishing Self-Defense Thresholds Outside the Home

Whether or not you have a duty to retreat

Not long ago, a CCW Safe member described a frightening encounter. Craving a midnight snack, he hopped into his truck for a drive-through run at his favorite fast food restaurant. While he was idling in the empty parking lot, finishing a phone call, a car pulled up next to him; inside were four sinister occupants. One rolled down his window and started shouting. While the words were unintelligible, the tone was unmistakably aggressive and threatening. He moved to a different parking spot, the car followed and reengaged.

Rattled, he drove away and went through the drive-through lane, hoping the agitated strangers would not follow. They did. He placed  his order, picked up his food, and then he eyed the empty, darkened roadway that led beyond the well-lighted parking lot. Fearing what would happen if the men  pursued him into the darkness, he pulled forward, giving the car behind him plenty of room to pass him if they chose.

He dialed 911 on his phone and steadied his thumb over the call icon. He put his hand on the center console where he kept his pistol. Rather than risk a potentially deadly encounter on the dark open road, he decided that if there was going to be conflict, it would happen right there, where there were employees as witnesses, where there were lights, where there were security cameras.

When the car passed by the pickup window without receiving an order,  he knew for sure they were following him. He engaged the phone call, put it on the speaker system, and turned the volume up. When the strangers pulled up beside him, they no doubt heard the dispatcher. “911. What’s your emergency?”

While speaking to the dispatcher, he maintained eye-contact with the driver of the car. He was ready to retrieve his weapon if necessary. After a long, uncomfortable pause, the car drove away.

If you remember the Michael Dunn case — the “loud music” shooting — you know this encounter in the fast food parking lot could have gone much differently. When Jordan Davis started shouting threats at Dunn in a convenience store parking lot, Dunn didn’t try to move to a different parking spot, and didn’t call 911. He went right to the pistol he kept in the glove box and killed Davis. Dunn will be in prison for the rest of his life.

What the CCW Safe member did correctly is attempted to disengage and retreat from the confrontation. When the aggressor reengaged, the member decided how far he felt he could safely retreat, and he made one last effort to do so. He established a threshold that had to be crossed before he would resort to deadly force, giving himself time to assess the threat and explore other options before resorting to deadly force. Luckily for him, it worked.

This encounter has some similarities to the Stephen Maddox case. Maddox is a CCW Safe member and he’s been outspoken about his experience and has given us permission to talk about his story. During a motorcycle rally in North Carolina, Maddox was attacked three times by a former member of his motorcycle club. The first two attacks ended when bystanders pulled the aggressor away. Maddox retreated both times. When Maddox got to his motorcycle, he considered riding away, but it was dark, he wasn’t familiar with the area, and he was so shaken by the two attacks that didn’t feel he could ride safely. Maddox had established his threshold.

He called 911, but the call was cut short when his attacker approached for a third and final time. After being wrestled to the ground, Maddox fired five shots, which proved fatal, and he retreated to a safe location. Although he was prosecuted for the homicide, CCW Safe funded his defense, and I’m confident the efforts Maddox took to establish thresholds for the use of deadly force and his efforts to avoid the confrontation contributed to the short jury deliberation that led to his acquittal.

We’ve also explored the Gerald Strebendt case were the veteran Marine sniper and professional mixed martial artist encountered an aggressive, crazed motorist on a dark highway after a collision. Like the CCW Safe members we’ve discussed, Strebendt (who is not a member) called 911. While he grabbed the .223 rifle he had in his vehicle, he didn’t use it immediately. Instead, he retreated into the darkness while warning the aggressor to back away — nearly 90 feet — until he crossed a threshold where he no longer felt confident that he could safely retreat further. In fact, Strebendt allowed the aggressor to go well beyond a safe threshold; the crazed motorist got close enough to touch his rifle. Although Strebendt was arrested for murder (there were other compicating facotrs in his case), the prosecutor cited the agressor’s touch DNA on the rifle as reason for settling the case with substantially reduced charges.

The lesson for concealed carriers is that potentially deadly encounters with aggressive strangers often go through a series of escalations, and that gives you the opportunity to attempt to disengage, assess the threat, and establish a threshold that must be crossed before you resort to deadly force. In “duty to retreat” states, you’re legally required to attempt to retreat if you can safely do so; in so-called “stand your ground” states, it is a good practice that can help you avoid a deadly encounter, or help you avoid a worst case legal scenario if you’re forced to shoot.  Had the man in the fast food encounter resorted to his pistol earlier, he could have been prosecuted like Michael Dunn. Had Maddox not made such an effort to flee his attacker before using deadly force, a jury might not have been so obviously sympathetic. Had Strebendt fired before retreating into the darkeness, he would very likely  have been convicted of murder.

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