In Self Defense – Episode 69: Tactical Mistakes in the Ted Wafer Case

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In Self Defense – Episode 68: Tactical Mistakes in the Ted Wafer Case

Firearms instructor Steve Moses joins Don West and Shawn Vincent as they revisit the touchstone Ted Wafer case. Steve identifies several mistakes Wafer made in handling the firearm along with the tactical mistakes that led to the tragic shooting Renisha McBride.. 

TRANSCRIPT:

Shawn Vincent:

Hey everybody, it’s Shawn Vincent. Thanks for listening in. We’re doing this series called Back to Basics where we are revisiting about twelve touchstone self-defense cases that Don West and I have explored over the past few years. We’re taking a new look at them, focusing on the key elements of self-defense, and that is that the defender had a reasonable belief that there was an imminent threat of severe great bodily harm or injury. Along with that, we’re looking at these four precursor elements that are significant to any self-defense claim. That includes the location of the shooting, the lawfulness of the defender’s actions, the first aggressor, who was it, and finally the duty to retreat, whether or not the law requires it.

Shawn Vincent:

In the process of looking through these cases, we’ve invited our friend in CCW Safe, contributor Steve Moses, to join us. Steve’s a well-regarded firearms instructor, and the more I talk to him, the more I learn. I’m beginning to believe his knowledge of firearms is infinite. He’s offered a lot of great insight into the tactical considerations that are apparent in these cases. He can tell us what the defenders did right, what they did wrong in regards to handling their firearms. We’re going to revisit the Ted Wafer case, which is one of the most important cases that we’ve looked at. It’s a home defense case. We refer to it frequently in our podcast. It pops up in my articles a lot, too. It’s interesting that during the sentencing phase of this trial, the prosecutor indicated that he felt that Ted Wafer used this weapon that he had, the tactical shotgun, a Mossberg 12 Gauge Pistol Grip Tactical Shotgun, like a toy.

Shawn Vincent:

Reviewing this case this time with Steve Moses’ input, we find that the prosecutor maybe was exaggerating, but that the way Wafer handled the weapon left a lot to be desired. We ended up having a conversation about that for about half an hour before we got into the basics, so I thought I’d split that out as its own podcast. We’ll get into the legal elements in next week’s episode, but for now here’s my conversation with Don West and our guest Steve Moses on the tactical considerations of the Ted Wafer case. Thanks again for listening.

Shawn Vincent:

Steve, since you’ve joined the family, and we’ve been having such a good time including you on these podcasts,I want to go back through these dozen or so cases, revisit them. I think we’ll find that, Don, like today we’re going to talk about the Ted Wafer case. There are still appeals going on for a case that was… The shooting happened in 2013, and the trial happened within a couple of years of that. Now we’re in a completely different decade, and there are still legal wranglings going on, just to speak to how long these things can go. Steve, your experience as a firearms instructor and as a veteran of law enforcement gives incredibly practical insights to our listeners on not just “where did the defenders go wrong legally,” but also tactically where they made mistakes that got them in trouble. I think you’ll tell us that Ted Wafer made a number of those.

Steve Moses:

Yes, I will.

Shawn Vincent:

Cool. Well, let me set up this case real quick. Don, I think you’ll agree with me. This is one of the most heartbreaking cases you and I have looked at because you’ve got a defender who, I think, is not a bad guy, made a very understandable mistake in extraordinary circumstances, and is now a convicted murderer.

Don West:

Yeah, so a guy in his mid 50s, just living his life, living in a suburb of Detroit. His neighborhood over the time that he had lived in it had taken a bit of a turn for the worse. He became concerned about home protection and bought a firearm with good intentions. The idea was to protect himself in the event of being attacked in his home. I guess that’s really the factual and the legal predicate that started this case. Of course, as you said earlier, it was now seven… It’s been about seven years since the incident itself. Nope. What? Yeah, I think so.

Shawn Vincent:

November-

Don West:

Yeah. Yes-

Shawn Vincent:

November of 2013.

Don West:

… going on seven years. The trial, there’s been a couple of appeals. I think his sentence has now been affirmed on appeal, and his convictions for sure. There’s still an issue or two floating around, one which could have some impact if he prevails on the length of his sentence, but I don’t think there’s anything left in the appellate courts that could have any likelihood of getting him a new trial. He’s in prison and likely to stay there for the foreseeable future.

Shawn Vincent:

Steve, Don mentioned that we have a guy here who . . . he’d lived . . . he’d bought that house about 20 years before in this Dearborn Heights neighborhood outside of Detroit. Within that time, the crime in the area had raised significantly. His solution, he said during trial actually that he had considered getting security put into his house but couldn’t afford it. He made an investment instead in a Mossberg Pistol Grip 12 Gauge Shotgun. I’m curious, from your perspective, about his choice of that weapon for home protection.

Steve Moses:

Well, it would absolutely not be a first, second, or even third choice for me. The reason is, is that it’s a weapon that many people believe it’s designed to be pointed almost from the hip rather than aimed. It does not have a buttstock, so the person owning it is, for the most part, unable to bring the receiver up and line up the back of the receiver with the sight’s in order to confirm that they’re properly aligned with the target unless they just physically hold it in front of their face. It’s also a pretty powerful weapon, and it’s just very subject to being mishandled by people that are not really dialed in to how it should be used. It’s seen as pretty sexy and tactical in a lot of movies. People will go, “Oh, well that’s a shotgun, and it’s in a real small portable package.” But the benefits that it offers to homeowners for home defense purposes, in my opinion, are not nearly as good as a conventional service handgun, or in this case, even a conventionally stocked shotgun.

Shawn Vincent:

Okay, interesting. The problems that can arise if someone’s not trained with a weapon, that will come out the play later. When we get to that point… We’ll circle around to it.

Steve Moses:

Okay.

Shawn Vincent:

Some folks might remember this if they’ve been members of CCW Safe for a while and been keeping up with our podcasts and our articles. We reference the Ted Wafer case a lot. This is the shooting of Renisha McBride, and it took place late in the night, actually the early morning hours. Ted Wafer, who lived alone in this home in Dearborn Heights, Michigan, had fallen asleep in front of the television. He had taken his pants off earlier and hung it on the bathroom door, left his cell phone in those pants, then fell asleep on his recliner. It was early in the morning. He’s awoken to violent pounding on the front door and the side door of his house. He got up. He said that he wanted to call the police, but he couldn’t find his phone. What he was able to find is his Mossberg Tactical Shotgun.

Shawn Vincent:

During a lull in the pounding, which his lawyer said at trial was shaking the floorboards of his house. He said that he couldn’t conceive that it was only one person making this noise. During a lull on the pounding, he goes to the front door. He opens it up. On the other side of this screen door that was on the outside of his door was this a dark figure standing on his porch. The rifle is fired. He claims to police that he didn’t know that there was a round in there. He expresses that it was an accident, but Don, Steve, we’ve talked just moments ago about how an accident is manslaughter, and it’s not self-defense. That haunted him in his trial.

Shawn Vincent:

Now, to turn the tables here, on the other side of the door was Renisha McBride. She was a recent high school grad, a cheerleader. She was drunk. She had been drinking vodka with a friend that night. She was high. She had been smoking pot, and she had been involved in, sometime not long after midnight, a single car crash, or a two car crash. She crashed into a parked car because she was intoxicated. She injured herself, it is believed, and had spent a couple of hours wandering around this neighborhood. It’s suspected that she thought that the house was either her house, or the house of a friend, or at the very least she was looking for help. Does that kind of a sum up what your recollection is of this case, Don?

Don West:

It does. At the moment the shot was fired, I don’t know whether she had done anything to gain any type of access to the interior of the home. I think not. I think the screen door was locked and remained so. There was some description in the media about her pushing on it, but I did not get the impression from any of the sources that she had successfully pushed through the door or in any way had actually gained access to the house. Steve, since you’re familiar with the Mossberg, I am curious since we talked about how Mr. Wafer mentioned to the police that he didn’t think there was a round in it. Don’t mean to put you on the spot, but can you explain how that weapon is loaded, and what the steps would have to be to actually chamber a shell?

Steve Moses:

Oh, absolutely. With that Mossberg, I’m sure that was the Mossberg 500, you would have to take a shotshell. You would load it from the bottom by pushing it through the loading port up into the point where it’s engaged by the shell stop in the magazine tube, and then racking the slide. That is, taking the slide in your support hand, and bringing it rearwards with enough force to force it all the way to the end, and then forward. That causes the shell to come back on the lifter, the bolt picks it up, and then that puts it in the chamber, and prepares it to fire.

Don West:

Is it roughly analogous to loading a semiautomatic handgun that you insert the magazine, and then you rack it to pick off the top shell and put it into the chamber?

Steve Moses:

Similar, similar, it doesn’t have a detachable box magazine. The magazine itself is actually a long tube, a cylinder, that goes under the barrel. You basically have to put those in one at a time. Of course, shotshells, it’s probably a 2-3/4 inch shotshell. That’s a relatively large . . . I want to say cartridge. That’s probably not the right term, but it’s much larger than, for instance, a 9mm handgun or most conventional. . .

Don West:

Of course. I guess what I was getting at, do you have to rack the gun to get a-

Steve Moses:

Yes.

Don West:

… shell into the chamber?

Steve Moses:

Yes, that’s what’s racking the bolt or, okay, rack that shotgun, pump the shotgun, work the slide action, you have to bring it back vigorously enough to where the shotshell is released from that tube. Then, when it goes forward, it feeds into the chamber.

Don West:

Yeah. So it doesn’t break like a typical standard shotgun where-

Steve Moses:

Does not.

Don West:

… you can insert the… In other words, when Wafer told the police, if he wasn’t lying about it when he said he didn’t know it was loaded, what it must have meant then is that he had put a shell or shells in it, had racked it at some point in time, but had just forgotten that he had done it, or he was lying about it. There’s no way to get a round in the chamber without actually going through the steps that you’ve described.

Steve Moses:

You would have to go through those physical steps, and under stress, I guess it would be relatively easy to forget… Excuse me, forget perhaps what you did in preparing something in order to go and use it to ostensibly defend yourself. I don’t know, but it’s a very conscious, significant motion that must be done with the shotgun in order to get that shotshell in there. It’s not something that’s done casually.

Don West:

But he could have done it an hour, a day, or a week, or a month before.

Steve Moses:

He could have done it.

Don West:

And just-

Steve Moses:

He could have done it exactly as you said, or he may have even actually racked it when he picked it up and simply didn’t recall, or alternatively, he was just not telling the truth. Don’t know.

Don West:

Yeah. That’s a very confusing aspect of the case. Unfortunately, one which probably directed more than any other single fact, the path it took in the legal system, I think.

Steve Moses:

It’s a very common, Don, for people, when they have negligent discharges, we prefer to refer to them in the firearm training industry as negligent discharges as opposed to an accidental discharge, because operator error was involved at some point. It’s very common when guns are fired either in a manner such as this, or they discharge into something else, the persons often say, “Oh, I didn’t know it was . . . I didn’t know it was loaded.”

Don West:

Sorry, Shawn, that was a bit of a side trip, but I am fascinated from Steve’s perspective how those things take place to put you in that situation. Like whether Wafer knew it and lied about it, didn’t remember that he’d done it before, or even under the stress of the moment may have done it and not even realized exactly what he was doing, especially if he’d had very little experience with that particular firearm.

Shawn Vincent:

Not only do I not mind the side trip, Don, but I’d like to take it a little bit further actually. Steve, I said something to you last podcast that elicited no reaction from you, at least no verbal reaction. In that same podcast, you had made a recommendation that if you’re a concealed carrier, and it’s legal and safe for you to do so, you recommend folks carry. Right?

Steve Moses:

That’s correct if it’s safe to do so, and you’re responsibly trained, and you understand all of the potential negatives that can go along with carrying a handgun. I mean, and there are many. I mean, people leave their guns in restaurants. They leave them in bathrooms. They leave them in cars. It’s a huge responsibility, and it really takes a significant commitment on a concealed carrier’s part if they are going to indeed carry. But if they do, they’re going to be far more prepared to deal with an incident where just really nothing short of having the ability to use deadly force is going to be sufficient to work.

Shawn Vincent:

Well, and here’s why I brought that up, because as an objective observer, and somebody who’s analyzed so many self-defense cases, and who’s been a part of the legal defense for a number of self-defense cases, for most of them … I can say this with some sincerity and accuracy: for most of them, if the gun had not been there, I think everyone gets out of the situation okay, and nobody dies. That’s not always true. There are some very key cases where I think it was completely obvious that the shooter needed to defend himself with deadly force. But after talking to you more, I realized what I meant is that if the defender was competent with the weapon, properly trained, and in this case even knew the readiness of the weapon, that nobody gets killed.

Steve Moses:

Well, that’s true. I’ll even go so much further to say in reference to the readiness, even if your gun is always ready, safe gun handling is just key. I mean, that is so critically important. In my opinion, Wafer violated two of the primary firearm safety rules, is one, he had his finger on the trigger, and two, he . . . Well, actually made me three. He allowed that muzzle to cover something that he wasn’t willing to shoot, and he was not sure of his target, and also what lies around it, or behind it, and everything. He basically violated three safety rules. Even if he’d had a loaded shotgun, had he not, we wouldn’t be talking about this today.

Shawn Vincent:

Right. Real quick, just tactically, one is what position of readiness, if you’ve purchased a weapon to have for home defense, what’s the right way to keep it? That may be a subjective question. Then two, what’s the wisdom of taking what you think is, if he’s telling us the truth, an unloaded weapon into a confrontation with a potential home intruder?

Steve Moses:

I really can’t answer that other than some people might believe that just basically displaying the weapon itself is going to be significant or sufficient enough to deal with the problem. I believe you and I had a conversation one time about how that, if you’re not willing to actually shoot somebody, you really shouldn’t be carrying a gun. Because in many instances, yeah, maybe that gun might get you out of a sticky situation, but it may very likely have negative consequences, including in this particular case where someone was inadvertently killed. The other one is, is I always have to look at this as a two way exchange. Sometimes I think we forget to look at these things from the perspective of the criminal offender. If a criminal offender is intent on committing a crime, and they are suddenly faced with the threat of deadly force, well, they’re going to do everything in their own power and in their mind to defend themselves. If indeed, they decide to do that, and you weren’t prepared to use that gun, it may very well end up in you being seriously injured or worse.

Shawn Vincent:

Sure. We recently looked at the Kyle Rittenhouse case, and there’s some suspicion that a couple of people approached this young kid who was carrying an AR-15 style rifle because they didn’t believe that he would use it or was competent to use it. We talked about the Alexander Weiss case where a poorly executed defensive display encouraged the perceived attacker to challenge him to, “Go ahead and shoot me.” He tried to reach for the gun and forced Weiss’s hand, or Alexander Weiss’s hand. . .

Don West:

Well, and let’s not forget the recent case in Austin. Is it Garrett Foster? Is that his name?

Shawn Vincent:

That’s right.

Don West:

The fellow that was protesting, and he has the AR-15 style weapon. It might actually have been an AK-47. I can’t remember exactly what the-

Steve Moses:

It was an AK-47.

Don West:

… firearm was, but-

Shawn Vincent:

Yeah.

Don West:

The army officer who’s moonlighting as a ride-share driver is caught in this protest, and Foster approaches him with his weapon, and from all accounts, apparently did something that made the driver of the car believe that it was being pointed at him. It may have simply been poor handling on the part of Foster, but it certainly created that well-founded fear of imminent violence, and the driver responded with lethal force. Foster died, and as far as I know, no charges have been filed. It certainly doesn’t seem likely that they will be under that legal but tragic scenario.

Shawn Vincent:

Yeah, so we’ve established multiple cases here where the poor handling of a firearm, and the display of that firearm without the intent to use it lawfully can cause life or death consequences for either the defender or the perceived attacker.

Don West:

One more operational question for Steve.

Steve Moses:

Yeah, sure.

Don West:

Since we’re talking about how it all took place at the doorway, does that Mossberg Pistol Grip Shotgun have an external safety as far as you know, Steve?

Steve Moses:

It does. It does. It has a push button-

Don West:

If so-

Steve Moses:

… safety on the top.

Don West:

So that means, at some point in time, Wafer not only chambered a shell, but he manipulated the safety at some point in time, either by taking it off, or putting it on and taking it off, or went to the door thinking that he had an unloaded gun, but had the safety off. That whole thing just doesn’t make any sense to me from a responsible firearm operator.

Steve Moses:

One thing I need to add here-

Don West:

You would know that stuff, wouldn’t you?

Steve Moses:

I need to add here before we… I know I’m the one really taking this off in the deep weeds, is many shotguns are not drop safe. What that means is that even if the safety is engaged, if the shotgun is dropped, they can still fire. So a lot of shotgun instructors and users, they make it a point that the shotgun stays unloaded in terms of the shotgun is never stored with a round in the chamber. When it is necessary to grab that shotgun for a perceived emergency situation, you go ahead, rack the chamber, the safety may or may not be left off because the gun does not drop safe.

Steve Moses:

To that end, it’s more important than ever that you comply with all of the safety rules and regulations. I just know a lot of guys that know a lot about this particular stuff, that may start taking issues with this, and all this other stuff, and just want to know is that, yeah, we understand what they’re saying. We know what they’re talking about, but in this particular case, I can’t really say what his motive was. If he thought that shotgun was unloaded, I don’t know why he would be then walking around, necessarily, with the safety off.

Don West:

If he had chambered a shell a week or a month earlier and had stored it like that, that was also a violation of the safety-

Steve Moses:

In my opinion, it’s not necessarily a violation of the safety rule, but with that particular system, I just do not think that it’s a good idea to have a long gun of any type just sitting around with a shell in it and not being on safe. Let’s say for instance that same shotgun-

Don West:

Good point.

Steve Moses:

. . . that I just started… I had to do something. I decided, okay, I’m going to go ahead, and I need . . . Actually, I wouldn’t have gone to the door. I would have stayed in my room. I would have chambered a shell in that shotgun, and I probably would have left that safety off. As soon as I decided to set that shotgun down for even a second, I would go ahead, and I would put that safety on. Then when it was time to store that shotgun, I would go ahead, and clear that chamber, and make sure that there was not a shell in it.

Shawn Vincent:

Here’s one of the real weaknesses in the case, is that she was an unarmed girl, for all intents and purposes. The severity of her threat . . . Steve, you tell me. I don’t think Wafer ever had a real opportunity to assess what kind of threat she posed once he opened the door. It was dark. He saw the shadow of a figure.

Steve Moses:

I completely agree. I’ve given some thought to this while we were talking, and I’ve tried to play that scenario in my head of what this might look like from the perspective of both players. So he hears this noise. He is scared to death. He grabs a shotgun because he thinks it’s unsafe. He then makes the statement, “It was them or me. I wasn’t going to cower in my house.” I don’t know for sure that it was actually his initial intent to go out there and engage that person, or, as he got closer, he may very well have heard in her voice that this was a feminine voice, and it was in distress. There’s no telling what all she may have said, or he may have heard, but there may have been a reason that caused him to think, “Well, this may be legit.” If that’s the case, and he goes over there, and he opens the door, as the door opens, it’s also within the realm of possibility that McBride, I believe wasn’t her blood level content like 0.22, which is like three times, or nearly three times the legal driving limit, plus-

Shawn Vincent:

And that’s not counting her marijuana intoxication.

Steve Moses:

Her marijuana, plus a possible head injury. Even without the head injury, we can at least assume that this person was impaired in some way. I can imagine if I were her, and I’m trying to get in this house, and I’m injured, and I’m confused, when that door opens, I might very well be of the opinion that I’m being granted . . . Here’s a place I can go. I’m not sure where the term came through, and whether this is even accurate, that she was trying to push through the door. I’m going to guess that more than likely that screen door opened to the outside. That is, in order to open up that screen door, you probably would have had to grasp the handle, and open it outwards instead of inwards because that’s just the way most of them work. That’s the way that key lock is in. I’m not sure for certain that he registered, “Oh, she’s pushing through the door,” but as much as she may have just had a really violent reaction, and not necessarily… When I say violent, I mean, rapid, agitated, not necessarily one that had any kind of intent whatsoever.

Steve Moses:

Obviously, Mr. Wafer thought that it was unsafe to not have a gun, so he took a gun with him. I’m speculating, and it’s 100% speculation on my part, is that he opens that door, and he puts his hand back on the support end of that firearm. Okay, that’s a pistol grip shot gun. In order to hold that shotgun comfortably basically, and shoot it with any kind of accuracy whatsoever, the gun has to be pretty much held in a horizontal position and aligned with the direct target or the desired point of impact. From what I understand, that round struck her in the head. That suggests to me that it may have been fired from an upward angle. That is he had the barrel elevated. If he had his finger on the trigger, which it’s unbelievable how many students that show up for our beginner classes that we make it very clear to them that you may not put your finger on the trigger until your sights are aligned with the target or being aligned with the target, and you’re making the decision to shoot, for just fear of negligent discharges.

Steve Moses:

We have to call them on it, and basically drill them on that throughout the class in order to break them of this tendency, which they don’t know any better. They see guns carried in this manner on television, in movies, on posters. Little kids running around with their fingers on the triggers of guns. Just people don’t really realize how dangerous that is. If his hand is gripping that shotgun, he’s got his finger on the trigger. If he responded even as if he were startled, then he probably clenched down hard on that shotgun. If you have all four fingers, support fingers, on that grip, and your finger on the trigger, it’s almost impossible to go ahead and convulse that hand, or clinch that hand, or grip that gun harder without your index finger or your trigger finger also coming with it, which may very well have caused the discharge.

Shawn Vincent:

So it’s tough to say… I mean, what I hear you saying is he had to have that rifle, or he had to have that shotgun up and pointed. Then, if he had his finger on the trigger, and he was shocked and surprised physically by what he found outside that door, then he easily twitches and squeezes off a round.

Steve Moses:

Yeah, he convulsed that hand. He clenched his hand, and he probably was holding that shotgun in an angle that was maybe 45 degrees with the muzzle end up, which since she was struck in the head, I can assume that she was probably at least his height. I mean, there’s a possibility that he was much taller, and she was much shorter, etc., etc., but I think that’s a good explanation for what may have happened without saying for sure that that’s exactly what happened.

Shawn Vincent:

All right, friends. That’s our conversation for today. Thanks again for listening in. Next time, we’re going to get into the basics, Back to Basics, on the legal elements of self-defense in the Ted Wafer case. Until then be smart, stay safe, take care.