In Self-Defense Podcast 133:Point of No Return

Law enforcement veteran and consulting expert Doug Deaton explains that when a concealed carrier fires in self-defense, they become the subject of a legal process that will dominate their lives until it is concluded – whether that is a decision not to file charges or a trial verdict. Once the process has begun, there is no turning back.

Transcript:

Shawn Vincent:

Hey everybody, I’m Shawn Vincent. Thanks for listening in to the podcast today. Not long ago, you may have heard an interview we did with Doug Deaton. That interview, when we recorded it, went on for more than an hour and a half. It was too much for one podcast, and there were some other things that I wanted you guys to hear about from that conversation. So I’ve put together another podcast with Doug. Steve Moses, our friend and firearms instructor, is the one who invited Doug to our show. Because of how things got edited, Steve, you’re not going to hear from him today, but his influence is all over this podcast, and we never would’ve had it without him inviting Doug to the show. So Steve, thank you for that.

 

In this conversation with Doug, Doug is a veteran of law enforcement. He served for over 25 years, including time on a SWAT team. He started his own firm where he does private investigations, and he is, more importantly, a consulting expert and an expert witness for criminal defense attorneys in self-defense cases. It’s really interesting to have someone with such a long law enforcement background then be an expert for criminal defense attorneys in these types of cases.

 

One thing that we talk about, that as an expert witness, Doug can often scrutinize the law enforcement’s investigation into a homicide in a self-defense case and run a parallel investigation. And one thing that he tells us is that it’s not so much what’s there, but often the thing that is going to save a defender in a self-defense case in the litigation that follows is identifying what’s missing. And there’s a quote on Doug’s website that I want to share with you. It says, “He is especially skilled at revealing the differences between genuine investigations and shallow inquiries conducted to create the illusion of diligence.” So you’ll be impressed with his credentials and his role as an expert witness. But we also have a conversation translating that into lessons for armed defenders and concealed carriers.

 

As a private investigator, Doug sometimes has to go to places where it’s less safe than where he would usually go, and he’s got some great advice about how to handle yourself in those types of situations. Sometimes just your demeanor, facial expressions, how you interact with folks, can determine whether you’re going to find trouble or not.

 

We also have a really interesting conversation, I think, about defensive display. Sometimes when people pull out a firearm and don’t fire it, with the intention of intimidating a potential aggressor, things don’t go the way that they think that they will. And we talk about a few specific cases where armed defenders did that and either ended up having to fire, or worse yet, were attacked by the attacker, who then used their firearm against them. So great stuff in today’s conversation.

Thanks again to Steve for your influence and for bringing Doug to the podcast. Here’s my conversation, with Don West, National Trial Counsel for CCW Safe, criminal defense attorney, and our guest, Doug Deaton:

 

Don West:

Doug, I heard you talking about how to conduct yourself when you’re out there interacting with people, mostly because if you put someone in their place or if you say that thing you probably shouldn’t say, you really have no understanding of who that person is, what their background is, what their cultural values may dictate, whether they’re mentally ill, whether they’re high, all of that stuff, all of a sudden you are inviting into your life.

 

Doug Deaton:

That’s right.

 

Don West:

And I want to talk with you more about some of those specifics, but I can tell you that I take a lot of calls from CCW Safe members that are involved in incidents ranging from practically nothing to lethal self-defense cases, and a large number of them start with that kind of scenario that you’re talking about. Usually a road scenario, where somebody cuts somebody off or feels offended, and most of them end by nothing bad happening except fingers raised and words shouted.

 

Once in a while there’s a display of a firearm. Once in a while someone goes to jail for that. Once, even more rarely, that shots are fired, no one’s hurt, and then once in a while shots are fired, someone is hurt. And everywhere along that spectrum is completely avoidable probably just by getting away and not engaging, and taking the risk that the other person is going be less reasonable than you are in the situation.

 

Doug Deaton:

That’s right.

 

Don West:

Or that they will somehow apologize for their offensive behavior that caused you to completely justified in yelling at them or calling names. We do have them in other situations, though, and it’s rare where we have had road rage incidents, a couple of them I can think of specifically, where it started with that, somebody cutting somebody off, and then some yelling that resulted in chasing and stopping and attacking, and ultimately shots being fired. You get that one rare bird out there who’s not going to let it go no matter what until they put hands on you, even if they have to chase you home to do it.

 

Doug Deaton:

Right.

 

Don West:

So I was fascinated by your comments in that earlier recording I heard, where you’re talking about cultural differences and what honor might dictate and respect and disrespect. Then you had, I thought, a really good suggestion of how to conduct yourself in public, especially when you’re an area you’re feeling a little uncomfortable in or that you think may cause you to have to act in a special way. If you could talk about that for a second, I’d love to hear it.

 

Doug Deaton:

Well, so I’ll give you a real world example of some of that. I don’t do a whole lot of it, but I am a licensed private investigator in the state of Texas, and an attorney hired me to locate a man who had inherited a substantial amount of property. The problem was that this guy was a homeless heroin addict living in South Dallas. And South Dallas and Southern Dallas County is a pretty rough area. All the attorney had to go on was a picture of this guy when he was 12 years old and his name, that was it. So it took me about five days to find him, but in the course of that search, I had to go into some pretty sketchy areas.

 

What’s funny is, I was dressed nicely, but I’m not the police anymore. I’m not. And I was armed and I had my pepper spray with me, and I also had a sap with me because that’s legal in Texas, impact weapons are. So I had an impact weapon, I had a pain compliance thing, and I had a deadly weapon with me. But the thing that helped me the most was just being very polite and very nice and letting people know right up front that I was not the police and that I’m just trying to help somebody out. I’m trying to find a friend of mine because he just inherited some money.

You know what’s funny is that even in some of the roughest places that you can go into, if you take anxiety off the table, when I say anxiety, I mean their anxiety, their suspicion, like, “Who is this guy coming in here and what does he want and why is he in here and what is he doing?” These are the kind of things, they’re evaluating you when you go in there. And if you just walk in there and say, “Hey, how are y’all doing,” and tell them right up front, “Hey, my name is Doug and I’m trying to find a friend of mine.”

 

When they first start giving you the up and down and they’re evaluating you, I tell them right up front, “Hey, I’m not the police. I’m not the police and I can’t stay long. I got to go. But I was just wondering, have you seen this friend of mine? If you have, I’d appreciate it if you’d give me a call, there’s my phone number right there, there’s his picture. Please let him know that I’m trying to help him because he’s inherited some money.” And then they’ll be like, “Is there…” They’re trying to find out if there’s a finder’s fee, if they’re going to get money.

 

Shawn Vincent:

Right, yeah.

 

Doug Deaton:

I told them, “I don’t know if there is or not. There could be. There might be. I’m not sure. I work for the lawyer that’s trying to find this man.” So you’ve got to make sure that people know that you’re not there to cause trouble and that you are being respectful of wherever you are, the place and the people both. To us it might be just some disgusting flea-infested bar someplace, hey, but to them, that’s all they own. That’s all they have. That’s their castle and their palace. And you don’t want to go in there and being disrespectful to the place. Don’t go in there throwing your weight around.

 

If you find yourself, which quite frankly, no normal citizen should ever find themselves in a dangerous sketchy area unless … you should never go there intentionally. But if you accidentally find yourself in such an area, it is exceptionally important to not behave in an arrogant manner. It’s really important to be deferential, to be polite, and to state right up front why you’re there and what your purpose is. You don’t have to go into a long soliloquy about it, but you should be very clear with people about what you’re doing there and what you need to get done, and make it clear that you’re trying to leave there, and then ask for whatever assistance or help that you need. It’s amazing how far that will get you.

 

Shawn Vincent:

Well, respect is the key word I take from that.

 

Doug Deaton:

Well, a hundred percent, absolutely. Certainly again, in my law enforcement career, I’ve certainly seen a lot of very well-to-do, well-educated people get themselves in a bind merely because of their general affect and behavior and their body language and their tone of voice and their facial expressions. They never overtly insulted anyone, and yet they ended up getting themselves in trouble because somebody got upset with the way they were behaving, because they were giving off disrespectful vibes and disrespectful body language and behaviors. And then when you’re doing that in somebody else’s house, so to speak, don’t be surprised when somebody calls you on it.

 

Shawn Vincent:

Doug, something I want to ask you about. We see a lot of cases where there’s a brandishing or defensive display issue that goes down. And then the cases that we’ve studied in the press, we’ve seen a number where somebody pulls a gun as a situation’s getting tense. Obviously, their expectation is that the other person will back down and say, “Oh my God, I’m wrong, I apologize, and you’re in charge obviously, and I’m going to go.” More often than not, they’ll get something out of that person like, “Go ahead and shoot me,” or “I’ve got nothing to lose,” or a full melee ensues. And then the one scenario that you talked about, that weapon could actually be used against the defender. Have you encountered that in your work? And what can you tell us about those circumstances?

 

Doug Deaton:

One case in particular that I worked on involved a farmer who had a enraged trespasser come onto his property and repeatedly refused to leave the property. The farmer eventually obtained his Remington 870 shotgun, chambered a shell, told the man to leave, and instead of leaving, the man became even more enraged and attacked him and tried to take the shotgun from him. And then they ended up in a life or death struggle over the shotgun.

 

I’ve certainly seen an awful lot of foolish behavior from people when they are presented with a firearm, when somebody pulls a firearm or a weapon of any kind and tells them, “Hey, you need to get away from me, get out of here.” And then they start telling the other person, “Yeah, go on, do it. Shoot me, use it. You ain’t going to do it. You won’t do that. You don’t have the guts, and you don’t have – other terms – to use that gun.” That’s one of the worst and most foolish things you can say to somebody.

 

The case that I mentioned earlier could probably be a case study, maybe it should be, about the realities of what happens when we pull out a shotgun. All these myths about, well, just rack that shotgun and they’ll run away. That is not true. That is absolutely not true. And that particular case is pretty standard. The guy’s already enraged. He gets the shotgun out. The intruder was enraged, I mean. The homeowner gets the shotgun out, racks a shell in the chamber, and it had absolutely no effect on it at all, no effect on the situation. In fact, it may have even enraged the guy further. And then he tells him to leave the property again and the guy doesn’t, and then he advances on him. So I’ve seen multiple cases, not so much in my expert witness work, but in law enforcement, I’ve seen multiple cases in which somebody got a gun out and it did not go the way they thought it was going to.

 

I can think of another specific case where some young men got into a pretty ugly argument. One of them went inside, came back out with an SKS, and the individuals he was pointing that SKS at said exactly what you were saying, Shawn. They were like, “Go on, do it, use it, shoot me.” And then when he didn’t, they attacked him and took it away from him. So you’ve got to be very cautious about what you do with a firearm. And then the truth is, you don’t have to be a master carpenter to be able to look at a guy swinging a hammer and using a saw to know that he isn’t a professional.

 

Shawn Vincent:

Right.

 

Doug Deaton:

Any one of us can do that. Like, “Yeah, I don’t think that guy actually knows what he’s doing with his hammer and his tools and the saw and all that.” You don’t have to be a master shooter. You don’t have to be Delta Force or a grand master to be able to look at somebody sometimes and realize, that guy doesn’t know the first thing about what he’s doing with that firearm. People can spot amateur behavior, and obviously they can spot foolish behavior and untrained behavior. So again, certainly I’m not in favor of mandating any kind of training, but I am definitely in favor of every person who carries a gun should go and get real training, solid training.

 

Shawn Vincent:

Don, while we’ve got Doug, is there anything that you wanted to talk to him about that we haven’t addressed yet?

 

Don West:

Maybe one other separate topic for a couple of minutes, just because of your extensive experience in law enforcement, hands-on being called to testify in court and make your case for people that you’ve arrested, and then now in a private consulting practice and investigative practice and such. You’ve really seen the criminal justice system from all perspectives. Now you’re consulting with defense lawyers to help them better understand the weaknesses and the strengths, if they’re there, of the case so that they know best what they’re facing. If they don’t have a defense, they want to know that too, obviously.

 

Doug Deaton:

Yes.

 

Don West:

One thing, comment that I heard you make one time, was that most people that are involved in some sort of self-defense activity, specifically because that’s what we’re talking about, but in any way, where they put themselves at risk is, you used an on the field metaphor, I think it was, where once you put yourself with that one foot on the field, all of a sudden you don’t make the rules, you don’t even get to decide who the teams are, and you’re standing there effectively all alone while everyone else has the resources and the manpower against you. I thought that was very powerful and I think it will resonate with our listeners, understanding from that perspective just how daunting the experience will be, even with a good outcome.

 

Doug Deaton:

Right. So that’s the thing, is that even some well-informed concealed carry citizens, many of them simply do not understand just how awful and how daunting and how stressful that the post-shooting environment is going to be. And there’s going to of course be the initial panic, and then there’s going to be this long-term anxiety, serious anxiety and serious stress, when you begin to realize that your future is no longer under your control, that determinations about your freedom, about whether you will or won’t be spending time in prison, about when you will and won’t be showing up in court, that’s not up to you to decide any longer. That’s up to someone else to decide and you’re not in charge of that.

 

So the sports metaphor that I had made was just pick any field sport, pick football, soccer, baseball, whatever, any field sport, and imagine you’re standing on the sidelines. And as long as you’re on the sideline, you’re not involved in the game, you’re not playing, you’re not actually on the field. You can watch that game unfold out there, but the minute you decide to step onto the field, when it comes to self-defense and use of force, the problem is you don’t get to step off the field again until that game is finished and completely finished.

 

So if you’re going to step on the field, a football field, imagine just being a regular guy, a regular gal standing on the sidelines of an NFL football game, and now you suit up and step onto the field, do you think you’re going to get hurt out there? Are you an actual professional player? Professional players get hurt out there. Do you truly understand the rules? There’s a lot of referees out there and you’re not in charge, and these are very serious people who’ve been doing this for many, many years, and you’re really not going to be equipped to be a successful player out there.

 

So as we had mentioned earlier, there are many times, there are multiple hearings that occur before you ever go to trial. It’s not just a simple binary thing. It’s not, “Oh, we’re going to go to a grand jury. They’re going to look at it. I’ll be no-billed.” Or if we do go to trial, there’s going to be a trial. No, there will be multiple court dates, there will be multiple hearings. Your attorney’s probably going to have to file a whole lot of motions for a whole lot of different things, not just discovery materials, but then you’re going to have to be looking at who the witnesses are against you and what we expect them to testify to. So you’re stepping onto the field with a bunch of professional players and most of us are not professionals.

 

Here’s the other thing. Even if you are a professional, if you are a highly skilled defense attorney, if that defense attorney is involved in a shooting, they’re not going to be playing the game by themselves. They’re going to need their own defense team to assist them, because we are emotionally, we’re all prone to being emotionally compromised. So even if you are a professional, you’re going to need a professional team to assist you with this game. But make no mistake, the game will be played all the way to the end, whether you want it to be or not, and so there’s no leaving. You’re not going to get to leave the field. This thing will be looked at, it will be investigated, and eventually it’s going to be adjudicated.

 

So the best thing we can hope for is that somewhere along the way there will be evidence and information and facts which are overtly exculpatory that will help to get this thing shut down, either, depending on your state law, at intake. When I say intake, I mean at the district attorney’s office, there’s attorneys there who are specifically assigned to evaluate cases and look at them. Hopefully, the case will be so strong and so obvious that it won’t even make it past the intake phase, or that even those attorneys, they’ll be empathetic and sympathetic to you, and will act that way with the grand jury. But as the old saying goes, “A good DA can lead a grand jury to indict a ham sandwich.” There’s a lot more at stake here than just legal matters.

 

Again, there’s a whole variety of factors that absolutely will affect the outcome of this, and some people don’t want to hear that. They don’t like to think about, “Well, it doesn’t matter how I live my personal life, I can do and say whatever I think or want. I can wear whatever T-shirts I want. I can post what I want, and if people don’t like it, well, that’s just too bad.” Well, those things, in the end, they do end up having some effect on the thinking of gatekeepers and on these other players on the field, and it is a rough game. It is a full contact sport, and it is truly your personal freedom, your future quality of life, and your future financial situation. All of that is at stake here.

 

Don West:

Let’s not forget that the other side has state-of-the-art equipment and as many substitutes as they want to put in the game. Whereas if you have any financial inadequacy, whether you pick the wrong team, whether your lawyer, this is the first self-defense case he or she is ever tried, you’re at a huge disadvantage even in getting a fair game, a fair trial, to start with.

 

Doug Deaton:

That’s absolutely right. There’s a great deal of turnover in district attorney’s offices. Just because a particular prosecutor has done all the work on your case up to a certain point, it doesn’t mean that’s going to be the same prosecutor that actually goes to court on it. And they usually do this in a team setting, so obviously they usually have two, sometimes three, different attorneys working on this case.

 

To your point, Don, if they need reinforcements or somebody leaves or retires or moves on, they bring in other attorneys. There’s no shortage of prosecutors, and they have absolutely no shortage of experts on their side as well. There’s going to be a line of cops, detectives, forensic experts, that are going to be coming in there and talking about what you did, what you said, who saw you do that, what does the evidence show? What does the forensic evidence show? What can we determine from the location of these shell casings?

 

For example, I know I’m kind of going far afield, but sometimes what’s not there can end up really hurting you as well. It leaves huge questions. And you said the guy was shooting at you, but we couldn’t find a single shell casing anywhere in the parking lot, nevermind that those shell casings were probably picked up by other people, or they got stuck in the tire tread of multiple vehicles that were driving out of there. Or in one case I worked on, some of the shell casings ended up being ejected into the back, the bed of a pickup truck, which left the scene. There’s all kinds of different reasons why the evidence that you say should be there ought to be there, but I can tell you when gatekeepers see that the evidence you say ought to be there isn’t there, sometimes they take on sort of a skewed mindset and begin to assume that you’ve lied. Then if they think …

 

Shawn Vincent:

If you lie about one thing, then you might be lying about everything.

 

Doug Deaton:

That’s it.

 

Don West:

Bet you’ve seen that.

 

Doug Deaton:

Yeah.

 

Shawn Vincent:

It’s funny, there’s that case in New York where the guy shot the girl, the teenagers that pulled into his driveway on his property, they made a wrong turn, and they were there and he shot from his porch. He claimed he tripped on a nail that had come up on his porch, and during trial, and then the investigator and the prosecutor was like, “Okay, show us the nail,” and he couldn’t, it wasn’t there.

 

Doug Deaton:

Yeah. Don, you had mentioned earlier, I think that some of my clients, some of my attorney clients, they just want a serious opinion about things, and sometimes, frankly, I tell them, “Your client’s guilty. I can’t help you. He’s absolutely 100% guilty. He did this and there’s no justification for what he did, and I can’t make a justification up for you. I can’t. I just can’t do this. It’s just not there.” I’ll just tell him, “I don’t recommend that you retain me any further because I’m unable to provide …”

 

Shawn Vincent:

Go get the best deal you can, yeah.

 

Doug Deaton:

Yeah. That’s right. That’s oftentimes what I tell them. I said, “Look, I’m not an attorney, but I’m telling you you’re going to lose this case. He did it and the forensic evidence proves it, and his statements to the police also are pretty much proven, and it’s certainly not helpful.”

 

Don West:

In many ways you’re doing everybody a favor like that, and if the accused understands that, has the ability to really step back and look at it from that standpoint, you’re exactly right, Shawn. That’s when you go get the best deal that you can, and frankly, seven years in prison is a whole lot better than 20, and maybe that’s the absolute best you can do and knowing full well that if you go to trial and lose, you’ll get the 20 or more. So sure, you’re doing everybody a service when you tell them the truth like that.

 

Doug Deaton:

It’s really weird. I had two, this has happened a few times, but to have them both happen in the same week was kind of strange. I had two cases last week in two different states, where the defense attorneys wanted me to write a scathing opinion and a scathing report so they could show it to their client.

 

Shawn Vincent:

You have to convince the client.

 

Doug Deaton:

To show the client this is how bad the situation is. “We hired the expert. This is the guy we told you we wanted to hire. You said you love this guy. You thought he was going to help set you free. Well, here’s what he has to say about your case.” And in both of those cases, it was just terrible. The fact patterns were awful. The evidence was terrible. Their behavior was reprehensible. And the attorneys, I called them on the phone, I said, “Are you sure you want me to put this in writing?” They said, “Not only do we want you to put it in writing, we want you to pull no punches. We want you to tell it exactly like it is, because…”

 

You can tell, attorneys, they don’t always like their own clients and they have difficult clients. And they said, “We want to be able to lay this report in front of them and tell them, ‘Look, this guy has never met you. He doesn’t know you, and he’s looked at all the evidence. He’s looked at your behavior on the videos. He’s looked at everything there is, and his opinion is the same as ours, that you’re guilty. It’s awful. Now, there’s no getting out of this.'” And to your point, Don, seven years in prison is better than 30 or 50, so let me go get you the best deal we can get you.

 

Shawn Vincent:

All right everybody, that’s the podcast for today. Thanks for listening through to the end. I’m glad you got to hear Doug Deaton’s metaphor for what it’s like to endure a criminal prosecution. Even if you get to the end of it and you’re acquitted, going through the prosecution is something that you wouldn’t wish on your worst enemy.

 

I’m cooking up some more stuff for you. I appreciate you listening to our shows. We’ll be back soon. Until then, everybody be smart, stay safe, and take care.