In Self-Defense Podcast 109: What Does “Reasonable Belief” Mean, Anyway?

Don West, Steve Moses, and Shawn Vincent wade into some of the legal and tactical ambiguities of dealing with a potential threat, including the objective and subjective aspects of “reasonable belief,” the concepts of “initial aggressor” and “provocation,” and trying to understand the intent of a potential attacker

 

 

Transcript:

Shawn Vincent:

Everybody, this is Shawn Vincent. Thanks for listening-in to the podcast today. Last week on the podcast, we started the conversation with Don West, he’s National Trial Counsel for CCW Safe, and our friend Steve Moses, he’s a CCW Safe contributor and a well-regarded firearms and self-defense, instructor — and we decided to go back to basics and talk about the fundamental elements of the justification for the use of deadly force. And that is that the armed defender must have a reasonable belief that they face the imminent threat of great bodily injury or death. There are a few other very specific circumstances where the use of deadly force is allowed. We’ll get to that in good time. In the course of that conversation, we define some of those terms, what “great bodily injury” is, and we talked about how to identify those elements as an armed defender, as a concealed carrier so that you can make those important life or death decisions properly, in the moment, so you survive that first fight against your attacker — and the second fight that you may face, the legal fight in the aftermath of a self-defense shooting. 

Today we’re gonna carry on that conversation, we’re gonna talk about a few other terms that will impact whether a use of deadly force incident is justified. We’re gonna talk about the concept of the initial aggressor. We’re gonna talk about provocation and how if an armed defender provokes an incident, that impedes on their ability to claim justification. We’re gonna talk about the use of deadly force to stop forcible felonies and the perils of using deadly force to protect property. 

But before we get into all that, we’re going to explore the quirks of the subjective and objective assessment of “reasonable belief.” And what that means is that even in a situation where objectively that is from a third party’s perspective, an armed defender might seem perfectly justified in using self-defense subjectively, based upon that individual’s skill sets and training and knowledge, there may be other options that they could take that would avoid that shooting or preclude the use of deadly force. Part of that conversation will turn to Steve Moses and he’ll tell us a little bit about the, “Can I shoot? May I shoot? Must I shoot” test. 

Thanks for listening in. Here’s my conversation with Don West and Steve Moses.

Shawn Vincent: 

Now, I just wanna talk about a mindset thing though there Don, because if you know … have the physical skills and ability to stop an attack without using deadly force — really technically, even if to an objective observer who doesn’t have those skills you may be legally judged justified — in that the mindset part of it is: if you don’t need to resort to deadly force to break contact or to stop that attack, that’s not really justifiable, the use of deadly force, that circumstance. You know what I’m saying?

Don West:

That’s exactly right.  So interesting and so intriguing. As you drill into this a little bit, someone watching what’s happening to you may feel, if they were in your shoes, you absolutely reasonably believe that the attack is imminently — immediately right now — and if you don’t use deadly force to stop it, you’re going to be seriously injured or killed. So it would meet that sort of reasonable test, the objective one from the outside. At that very moment, you could be saying to yourself, “I got this guy. Can’t hurt me. I’ve got skills. I’ve got experience. I know what to do. So I am not afraid of great bodily harm or death.” And in fact, it would be interesting because you might say that in a police interview after the fact, if you did use deadly force … after the fact, the police officer may question you about what was going on, and were you afraid you would die if you didn’t defend yourself. And you might in a cavalier sense, or maybe even in a sincere sense, say, “Not really. I knew I could handle this guy, but I’m not gonna take the chance that he might rough me up a little.” Who knows? But you could actually talk your way out of what would otherwise be a very valid, legitimate objective, objective self-defense claim.

Steve Moses:

Shawn, let me share something with you that a fellow instructor (Lee Weems) states: Can I shoot? May I shoot? Must I shoot? 

So can I shoot? Well, I can. If the guy’s just standing there, of course, I can (I have the ability to) just shoot the guy. Okay? But that’s not lawful. If that same guy is on top of me and he’s attempting to strangle me or beat me senseless, I can probably in many instances defend against that, lock him down, do a bump and roll and escape from there. So may I shoot him? Yes. Do I have to shoot him? No. Or must I shoot him? I can’t get this guy off of me. He is in a position where I’m in imminent danger. The only response I have is going to be using a deadly force weapon against him. And to me, this kind of circles back to a couple of the cases we discussed in which a homeowner shot an intruder, if you will, that was attempting to break in the house.

I believe both instances, or at least one of those instances, it was by mistake and the homeowner shot that particular person. So could he shoot him? Yes. May he shoot him? Well, he did shoot him and it was considered to be lawfully justified. Must he shoot him? Had he gone back into this bedroom, gotten that hard corner with his wife, it may not be that type of situation. And so that’s just something that we need to realize is there’s a big difference between something that’s justified that I can do and something that’s justified and that I have to do because the thing that’s just justified. Even though you are vindicated in everything, we know that you’re going to go through hell in terms of dealing with the media, in terms of being possibly charged with a crime, having to go perhaps through a lengthy court trial, even though somebody would call that a win. I think we would call that just surviving. And so I think all of those are important factors. So Lee Weems, kudos. Can I shoot him? May I shoot him? Must I shoot him? We really want to select must I shoot

Shawn Vincent:

Him? And Don, I think from a legal perspective, when you’re defending an armed defender, legally, if they acted with the “must I shoot” mentality and they made a couple mistakes or a misperception and ended up really being in the “May, I shoot,” they get a lot more forgivability than the person who is mentally operating from the “May I shoot” perspective and they make a mistake or two in perception and they end up in that first, “Can I shoot” or “I shouldn’t have shot” category. Do you know what I’m saying there?

Don West:

I think I do. When a person is being prosecuted in a self-defense case, the whole thing starts of course with the defender having acknowledged, yes, number one, they were the person involved in the incident. They did what they are accused of, meaning they used deadly force which either killed or seriously injured the other person. So 95% of the prosecutor’s case is already made at that point. However, the claim is: “I was justified because I was attacked and I had no recourse physically, but to defend myself using that level of force and therefore my conduct was justified.” Of course, the prosecutor can rebut that claim and the defense must put on some evidence of self-defense even to get it in front of the jury. Though the prosecutor will typically rebut those claims by saying you didn’t have to shoot the guy you did so because you were angry, or you could have avoided the fatal conflict by just exercising reasonable judgment.

So you acted unreasonably, and any time you put yourself in a situation where you had opportunities to de-escalate, you had opportunities to avoid — you set yourself up for the argument that will ultimately put your self-defense claim at risk. And yes, I think you get the benefit of the doubt in many situations, especially if you’re at home or if you’re attacked at your place of business or in your car. And I think, generally, if it’s clear that you were attacked and you had to defend yourself in so-called stand-your-ground states, you don’t have to legally retreat. But nonetheless, when you take all of those extra steps when you may shoot, but you didn’t absolutely have to because you had the chance to deescalate or you had the chance to avoid, you had the chance to do something that gave you more opportunity to assess more time to operationally decide what you had to do and you still had no choice, yes, you’re gonna get the benefit of the doubt in my view, because you’ve shut those, you’ve shut down those avenues that prosecutors like to go down to refute a self-defense claim.

Shawn Vincent:

We’re gonna transition now to the idea of being the initial aggressor or provoking the conflict. It’s difficult to claim self-defense if you are the one who started the fight.

Shawn Vincent

In a lot of states, there are codicils to the core self-defense justification for the use of deadly force, which we’ve just said was that you have a reasonable belief that you faced an imminent threat of great bodily harm or death — but one of the things that can get in the way there is, in most places, you can’t be the first aggressor. You can’t be the one who picked that fight and it got outta control from you, and then you used deadly force … except for some extenuating circumstances. So maybe it’s worth talking a little bit about what legally a first aggressor is.

Don West:

Yeah, that’s a really good point because of course also when a case is being evaluated, whether self-defense was lawful under the circumstances, there’s going to be a focus on who started it. Because if you are legally considered the initial aggressor, you may very well not have any right to claim self-defense legally. The initial aggressor, I think, in very basic terms, is that you commit the first crime in a sense. You strike the first blow. You make the first credible threat. You’re the person that actually starts the wheel turning that puts someone else on notice that you are being aggressive. 

I don’t think that words are typically enough. I don’t think there’s enough, just … and people forget, I think, that you can argue with someone. You can call ’em all sorts of names, S.O.B. — you hear that in the road rage stuff all the time. You can even stand and wave your arms around if you’re a few feet away if you’re just angry or loud or something. That’s not “initiating,” legally. If you assault someone — if you raise your hand and approach them — then you become the initial aggressor and the other person has the right to defend themselves against you, and they do, and you get hurt … then you can’t very well turn around and say, “That person attacked me and I’m gonna claim self-defense” for what you did after the fact. 

Another sort of corollary to this idea of “initial aggressor,” I think, is “provocation.” Provocation is also a legal term that if the prosecutor is able to show that the defender … I love the word “provocateur, so I’ll use that right now. The defender is the provocateur. If the defender provoked the incident, they also lose the right to self-defense.

There were some claims in the Rittenhouse case that Kyle Rittenhouse tried to provoke some of the violence that was used. Now in a legal context, and this varies somewhat from state to state, but if you are provoking an individual, the concept there is that you’re doing something almost as if you’re baiting them. You’re saying things, you’re doing things with the expectation that they will respond physically. And when they do respond, the notion of provocation is that gives you the excuse to then attack them. So you sort of bait them into doing something and then when they do, then you go to town. So if that scenario, that sequence is shown, that would be a provocation, and you would lose the right to defend yourself, You can imagine the scenarios. We all can think about people arguing back and forth or taunting, baiting, that sort of thing, or “I dare you” sort of thing.

Shawn Vincent:

Steve, I saw you nodding your head in agreement with Don there. What’s your perspective on that? “Provoking and “first aggressor” “provocateuring,” if you will.

Don West:

I’m gonna use that for a screen name. I think … Although I may not wanna do that, right? If I have to defend a self-defense … no, no later, I don’t wanna be on social media or out there as “the provocateur.”

Steve Moses:

I think that was incredibly spot on. And as soon as we put that firearm on, we’ve just set ourselves apart from everyone else in terms of our ability to go up and engage in a confrontation with another person. Any time that we do that, the danger that it may escalate and turn into something that we did not intend it to do  — that exists. It seems like in today’s world, people are a little bit more impolite than perhaps they were back in the days when everyone was armed. They used to say that armed society is a polite society to a certain extent. You see confrontations, you see people’s videos that people think it’s cool and all that other stuff. And it’s really difficult for me at times to wanna keep my mouth shut and not confront someone that just did something that was just totally offensive to me.

Or maybe they said something that was derogatory to one of when my family members while I was present and everything, you know, wanna stand up for ’em and everything that really it’s in our best interest to just go ahead, walk away from those situations … always try to console myself by thinking that anybody that walks around that hot-tempered, they probably have plenty of difficulty in their own life without me getting involved. 

And so I think that’s really, really important for concealed carriers to understand it. I think that, Don, is that where basically if you say that was Andrew Brancas’s, five elements of self-defense, I think that might come under “innocence.” Is that possible? If you engaged in something that might go to mutual combat or that was mutual combat, then your self-defense claim probably evaporates unless you at that particular point make some heroic attempt to disengage, and then that person continues. But any time that you get involved in a confrontation like that, perhaps that kind of challenges any claim of innocence on your part.

Don West:

Yeah, I think that precisely is what he’s talking about. You have to have clean hands, you know, have to go into this not as someone looking for a fight, provoking a fight, making the first step. You also touched upon how this thing can play out because yes, you can actually initiate a fight if you intend it to be at a certain level. You know, guys are arguing and you raise your hand, you’re gonna hit somebody open-handed or you push him in the chest and that’s a battery —that’s a crime. You can’t do that. And the other person responds disproportionately to the level of force that you used. If all of a sudden you’ve pushed him in the chest and they raised that baseball bat. Now you may have lost self-defense if he defends himself against you using the same force to continue your attack. But if he escalates it, if he raises it up to a higher level of force, including deadly weapons, then you may have lost your initial right to self-defense. But you can regain it, especially if you have attempted to withdraw. You say, “I don’t want any part of this now. And they become the attacker, especially if they use more force than you have, you can sort of regain your right. But I think what Andrew Branka talks about in terms of innocence is exactly right — you can’t have started this thing down that path.

Steve Moses:

Did we see an example of that in the Drejka case when the boyfriend came and pushed Drejka, he tumbled to the ground, and then Drejka went for a gun and the guy started backing off? At that particular point, he became an innocent party or less guilty than he was before.

Don West:

You got the “handicap parking spot case.” Yeah, it seemed that that was one of the interesting questions in the case was “What was happening at that point?” Was the attack going to continue against Draka once he was knocked down to the ground? Maybe there seemed to be some movement toward him, but then when Draka displayed the firearm, the video was analyzed by microsecond to see who was doing what and whether it was realistic, and although it was accurate physically, whether it was realistic in terms of what the thinking was, who knows? But it was clear that the attacker began to step back. And I think at that point it’s pretty evident he’s withdrawing his physical attack anyway.

Shawn Vincent:

And where I think we see a lot of cases where people get in trouble with the provocation thing is if you’re gonna go confront your neighbor for stealing your lawn mower (or keeping it when he borrowed it for too long), or if you’re gonna confront your daughter’s deadbeat boyfriend or your girlfriend’s new lover, and you go over there and you are afraid that it might come to blows, and then you think to yourself, “Well, I’ll take my gun just in case.” Now you’ve gone someplace, started a confrontation that had the potential to turn violent, and you anticipated that by bringing your gun — that starts you off legally on shaky ground when it comes to making your self-defense claim.

Don West:

Yeah, it makes me think back to a TV ad campaign. You’re way too young to remember this, but Steve might, Steve might, back in the day, there was an actor by the name of Robert Conrad. He was in a show, Wild Wild West among other things, and he did a promotion for Duracell batteries. Steve, do you remember this? He would take a battery and put it on his shoulder, kind of put it on his shoulder and then dare people to knock it off. So in my mind, that’s classic provocation, isn’t it? He’s inviting the contact and you can tell just he acted like he was a hard case. I don’t know if he was or not, but you could picture what was going on. And the message of the ad was, “Yeah, go ahead, try it. I dare you to try.” And then of course, who’s gonna get their butt kicked right at that point. But that to me, that’s classic provocation.

Shawn Vincent:

I told you we would get to some of those rare circumstances where the use of deadly force is justifiable in that circumstance beyond the imminent belief of great bodily injury or death. And in a lot of places, the statutes allow for the use of deadly force to stop a forcible felony. I’ve asked Don West to explain to us just what a forcible felony is and what sorts of forcible felonies would potentially justify the use of deadly force. Here’s Don:

Don West:

Violence toward you as a crime victim of a certain level or certain degree. That’s very vague and we will talk about that in more detail. But it is a separate, in my view, it’s a separate theory for the use of force, including deadly force. Separate from the idea that in the core traditional self-defense context, you may use deadly force in response to an immediate or imminent threat of great bodily harm, great bodily harm or death. In this notion of “aggravated felony” context, it is when you are a potential or someone else near you at the time that you may try to protect, appears to be an, I’ll say “imminent”; I don’t know that the statutes necessarily use the word imminent or immediate, but basically that you are the victim of a violent crime of some sort. So typically if you are walking down the street and someone attempts to rob you, points a firearm at you, a knife perhaps, threatens you with it for the purpose of robbing you, taking your property by force, you would be then the victim of an attempted robbery.

And in many jurisdictions, you have the right to use deadly force to prevent the imminent commission of a forcible felony. Well, within that category of forcible felony robbery, armed robbery would typically be included certain levels of kidnapping. “Aggravated kidnapping” is a term in some states or “kidnapping” in others, depending on how it’s defined. We know how life-threatening kidnapping is and what a serious crime it is. Sexual assault would be in that category, typically. It may even extend to defending property that you have from those life-threatening serious property crimes. Arson, for example. Florida happens to be a state where the forcible felony category is extensive. Almost any violent felony would allow you to use deadly force to prevent the imminent commission of that felony robbery, rape, kidnapping, I think certain levels of aggravated battery and assault, any level of murder, that kind of stuff.

So that’s the category we’re talking about. It may differ from state to state as to which articulated crimes are included for which you may use deadly force to prevent the commission of. But that’s the concept. So I view it as sort of two parallel but different theories of self-defense. One is the direct response to the imminent threat of great bodily harm or death to you or another. And the other then is to prevent the imminent commission of the violent felony or the forcible felony. 

The forcible felony itself that you are seeking to prevent doesn’t necessarily have to cause serious bodily harm or death. Maybe it’s possible that it could, but you can rob somebody, arguably, I suppose you could even have a sexual assault of somebody, you could kidnap somebody without seriously injuring them. But the crime is so heinous, so offensive to civilized society that, in most jurisdictions, the law allows you to use deadly force to prevent someone from committing those crimes. Did I leave any gaps in that? I tried to sort of paint it with a pretty broad brush, but you don’t have to be a crime victim if you fall into one of these serious crime areas, you can stop that from happening to you or to someone else up until including deadly force in most places.

Shawn Vincent:

And Steve, didn’t it sound like a lot of those things are where there’s violence implied and although maybe the imminence of death, it’s a step or two away. If someone kidnaps someone, the chances that they’re going to be seriously harmed or killed at a second location is super high. If someone actually forcibly breaks into your house, the chance that they intend to harm you has elevated greatly, even if you’re not immediately imminently, as in right now, fearing that death or serious injury. The same thing with a robbery. I think the implied contract there is “your money or your life,” and if you give up your money, then perhaps they’ll spare your life, (however, I see more and more cases where that’s not the case.) But you don’t have to wait around to find out. This forceful felony law gives you the opportunity to use some discretion there. Is that how you read it, Steve? 

Steve Moses:

Absolutely. One of the main reasons that I’m glad to see this included in this podcast is because, in so many instances, students are concealed carriers that perhaps they are applying for concealed carry weapon, whatever. They go through courses, they talk about the use of force. They say it’s only applicable in the event that imminent great bodily injury or death is possible. It doesn’t address some of these other things, which a lot of times kind of leaves concealed carriers in limbo as to, well, what can I do? What should I do if someone tries to snatch my child or they tried to carjack me or that thing? Because at that particular moment, I don’t know that I’m in imminent danger of grave bodily injury or death. And so I think it was really important to bring this particular topic up to clarify, to concealed carriers that yes, you have the right to protect yourself and your loved ones, your children, your spouse, whoever, in the event that they are the target of one of these crimes.

Don West:

Let me interrupt or include in this part of the conversation — Steve, thank you, that’s really helpful — but I also want to talk about the other side of it. What’s not the imminent commission of a forcible felony or what kinds of crimes, clear crimes that you may be a victim of or a witness to that you cannot use deadly force to prevent? You don’t wanna shoot somebody who’s trying to steal your car, for example (separate from carjacking). You don’t wanna shoot somebody who has just stolen your bicycle and is riding off with it. Most of the property crimes except for the real highly potentially violent and death deadly ones like arson, some states a burglary separate and apart from the notion of defending your home against an intruder, but someone even that snatches your purse — some places that’s robbery, some places it’s not. It kind of depends on the amount of force and whether there’s a risk of injury to you. Some states wouldn’t include it, even if it is considered a level of kidnapping or a level of robbery. I think Texas, if I’m not mistaken, may have two categories of kidnapping. One is called kidnapping and one is aggravated kidnapping. Whereas there’s a kind of abduction or false imprisonment-style kidnapping that would not automatically allow you to use deadly force. It might have to fit that category of aggravated kidnapping, which poses such a greater threat. So just the idea that there are certain kinds of violent forcible felonies for which you are legally allowed to use deadly force to prevent. There are lots and lots of crimes for which you can’t. So I would encourage people as they study and become more familiar with Andrew Branca calls, the boundaries, the legal boundaries, that you also pay attention to those things so that you don’t do something foolish by using lethal force to prevent theft. No matter how outrageous or how offended you are or how brazen the person is, you don’t wanna put yourself in legal jeopardy.

Shawn Vincent:

Well, and wouldn’t you say that, from a legal perspective, defending somebody charged with the use of lethal force in response to a forceful felony, there’s a lot more ambiguity there. If it’s stopping someone who seems to have the ability, opportunity, and intent to kill you, that’s a clear-cut case of self-defense. But if you’re using that deadly force to stop a crime that is less immediate and more ambiguous, there’s a little bit more challenge on the legal defense side.

Don West:

Of course, this is all going to be screened at different stages by different people, seeing ultimately whether what you did was reasonable. And while you have to decide for yourself if was reasonable, the other people get to decide ultimately whether what you did was reasonable. And frankly, in my view, even if there might be a technical defense, meaning that “you may” as opposed to “must” in a violent felony or potentially violent felony, you don’t want to take the chance unless you really believe you need to do that to protect your life or someone else’s. 

There are all sorts of robberies, which is a taking by force or threat of force that really aren’t life-threatening. If somebody stands in front of you and says, “Give me your wallet, or I’m gonna slap you with this open fist, or I’m gonna knock you down.” There are lots of very aggressive, I’ll call them homeless, displaced people that get pretty aggressive with people. And they may even make demands that might technically qualify as robbery. But obviously, though, the context of that, is that you don’t really fear, fear that you’re going to be seriously injured. And what they’re asking for basically is a forced donation and you don’t wanna be taking your gun out and shooting those people.

Steve Moses:

Something though I might add is in a lot of strong-armed robberies, you’re actually more likely to be injured in one of those than one in which a weapon was actually used. And the thought process behind that, from what I understand, is that I’m going to have to show this person that I have the ability to enter them or kill them, which is different than just displaying a weapon. And so something to be mindful of is, there’s one thing to someone slaps you or even punches you and knocks you down and starts grabbing your stuff as opposed to that person that you, and you see this a lot of times as the victim won’t surrender their purse or they won’t surrender their wallet. And then in that particular instance, you’ll see the attacker continue to strike them. So that’s something to consider is that may very well, but for instance, that’s your mother or that’s your aunt, or that’s someone else that does not have the ability to defend themselves at that time.

Once you’ve been knocked to the ground, continuing to try to protect your possessions is probably a very serious mistake. And it, it’s something that, I mean, we should take some consideration to. And one of the things that you’ll see from time to time is that you will see someone that’s been assaulted that kind of makes a lame attempt to retrieve a weapon right in the middle of the assault. And in those particular instances, they typically do not turn out well for the victim because the attacker just simply overpowers them, takes the weapon away from ’em, even shoots them with the weapon at sometimes

Don West:

That’s brilliant assessment, Steve. Thank you. I didn’t want to mislead anybody by suggesting that they shouldn’t use necessary force to protect themselves obviously. But I agree with you. I don’t think you necessarily want to use force to protect your property. That’s a tough one. You know that’s a really tough … when you, you’re going to be angry and indignant and offended. Someone dares display a weapon and want your stuff — and you want to shoot them, right? You want to punish them essentially for doing what they’re doing. But you’ve got a calculation of the value of the property, the value of the risk of injury to yourself, and all of that stuff that’s happening in that moment. But do you agree, it’s sort of the default setting is don’t take any chances with your life? And then don’t engage. If you can avoid? This is fascinating to me, I don’t claim to know anything about it, but the idea of: How do you assess if someone is approaching you with a weapon and it’s clear to you that they’re doing it to intimidate you in surrendering your property — it’s an armed robbery — how do you assess whether you think that if you give them your money, they’ll go away? Or if you give them your money, they’ll shoot you anyway. Or if you don’t give them your money, they’ll shoot you. Or if you don’t give them your money, they’ll go away. I mean, the whole thing must be extremely difficult to assess at that moment. And is there training, is there stuff you can do to get better at that? Are there body cues? Is there Craig Douglas insight into that stuff?

Steve Moses:

Unfortunately, no. There have been many instances where, and this has actually happened to one of Tom Givens’ students who was not armed at the time in which he went ahead, surrendered his billfold, and then the person shot him. He was arrested, and taken to trial, they asked him why he shot the other person. He goes, “Well, I was having a really bad day and I wanted someone else to have one too.” And so for us, we really have to assume that the worst-case scenario is possible. And if you have the skills and you have the tools, then my response would be is I’m gonna defend myself as long as my life remains at risk at the first opportunity, which in many instances means I can initially buy my time and wait for a break in the attacker’s attention from either me to the possession or looking around to see if there’s anyone else in. And then if I’ve got the skills, right then, that’s when I would make my move.

Don West:

That’s what you were talking about when you talked about the ability to draw, use the force … doing it quickly, confidently, and safely. So you basically have to know how to do that within the time frame that you think you’re going to have.

Steve Moses:

Yes, yes, yes, yes. How that person positions their head has an effect on that time frame. For instance, if they glance off to the side, you know, might have, I don’t know, maybe half a second, three quarter a second to initiate action if they completely turn so you can see the inside of their ear, you may have a second and a half. One of the things that is important for us to all remember is that we have what’s called a “reactionary gap.” And so when that person confronts me, no matter how skilled and how trained I am, there’s gonna be a reactionary gap in which I see what’s going on, I process what’s going on, and I make a decision to act, and then I act upon it. And the faster I can go through that cycle, it’s called the “O.O.D.A. Loop”: Observe, Orient, Decide, Act.

If I can go through my cycle faster than the other person, then I had the advantage. So basically I see, well, let’s just say he selected me as a victim. So he saw me, he focused on me, he decided what to do, and he acted okay, now he’s ahead of me. So now I see him and I have to observe that, and I have to decide what I’m gonna do, and then I have to act. Okay. So all of that takes time, and it can be a quarter of a second to a full second. Now, if that person who is robbing me sees me complying, Yes sir, here it is, take it is hand it off. And then he looks away and I move, guess what? He’s back in the cycle of having to observe, orient, decide, act. And by that time, I’m all ready to act.

And so having those skills simply means that it doesn’t mean I’m not gonna get killed, or it doesn’t mean I’m not gonna get shot, but it means it greatly increases not only my chances of surviving this situation — but knowing I have these skills also, perhaps mediates, to some degree, the need to use force too quickly because the situation is still ambiguous. So I know that I don’t have to, it’s not gonna take me four or five seconds to respond effectively. And this person is doing something that’s okay, this is concerning to me. Okay, I’ve got time. I pick him up at a greater distance. “Hey man, you mind staying back?” I start repositioning. Okay, I’ve got those skills. I have the ability to do that. So that if then he goes ahead or she or they play their hand, I’m in a better position to respond.

Shawn Vincent:

To your point, Don, there are a couple stories that I’ve encountered, and to what you’re saying, Steve, — I worked on a case of a crime victim who was carjacked late at night, and the guys, he gave him the keys, he gave them his wallet, he gave him his phone, and they still shot him 13 times and then ran over him with his own car, and he miraculously survived, right? And I met a retired Marine captain who in his second career detected someone breaking into his house late at night and he got his pistol. He came out, he was in a low ready position, and he encountered the intruder and he gave them a quick assessment and he said, “They’re just kids.” And when they saw that they were detected and that he was armed, they ran off. And he had a moment there where he could have legally and understandably, justifiably used deadly force, and he didn’t.

And those two instances just illustrate the broad scope of what’s possible in these encounters — how much intuition, how much training, how many different variables go into it. And I think the reason that we’ve been able to continue having these conversations for six years and still never run outta things to talk about, is because there’s an infinite number of circumstances where somebody can be put in these life or deaths situations and have to make very important decisions very quickly that have extraordinary consequences. Not just physically life or death of the people involved, but then legally in the wake for the offenders, families, and the rest of their lives.