The Finishing Machine

The Self-Defense Case of Gerald Strebendt

Part 4: Reasonable Fear 

   

In this installment of “The Four Elements of Self-Defense,” we will examine how the concept of reasonable fear affected Gerald Strebendt’s legal defense.  Like most of the shooters we analyze in this series, Gerald Strebendt was NOT a CCW Safe member.  We’ve chosen his case because it provides clear lessons for concealed carriers regarding what can go wrong in a self-defense shooting.

Gerald Strebendt served as a sniper in the United States Marine Corps.  When his enlistment was up, he saw action in Afghanistan as a Blackwater contractor. After that, he became a professional mixed martial arts fighter winning nine of 16 matches. His aggressive fighting style earned him the nickname “The Finishing Machine.” In 2014, Strebendt operated a mixed martial arts studio in Springfield, Oregon.  On the night of January 29, The Finishing Machine had just been to the grocery store before driving home in his new GMC Denali on the Bob Straub parkway.

The car in front of him on the dark highway stopped so suddenly that Strebendt had to pass on the right shoulder to avoid a collision.  Moments later, the driver of the other car, a man named David Crofut, rammed Strebendt’s vehicle. According to Strebendt, Crofut started shouting threats.  When Strebendt could not restart his vehicle, he grabbed a loaded rifle from the back seat, dialed 911 on his cell phone, and exited his truck.

Despite the fact that Strebendt had a menacing-looking .223 caliber rifle and was clearly on the phone with authorities, Crofut continued to yell and advance toward him. “I can’t see his hands,” Strebendt told the emergency operator.  He later told investigators that Crofut claimed to have a gun and seemed to be reaching for his pockets.

Strebendt backed up a total of 80 feet, all the while pleading with the stranger to “get back from me.” Crofut got close enough to put his hands on the rifle.  Touch DNA evidence confirmed that Crofut had clasped the barrel. Moments later, Strebendt fired a single round, striking Crofut in the head, killing him instantly.

Strebendt claimed self-defense, but less than a month later, a grand jury issued a murder indictment.

Fear of the Unknown

Don West, veteran criminal defense attorney and National Trial Counsel for CCW Safe, says that Strebendt had good reason to be afraid. “This guy rammed him in the dark with a vehicle.  That set the stage for Strebendt.  He didn’t know what was going to happen, but he had reason to believe it wouldn’t be good.”

In his book about the case, Strebendt’s attorney Mike Arnold described the isolated conditions on the highway. “Staring southbound in the dark of night would have been like staring into a black hole,” he writes. It would have been very difficult for Strebendt to make a good assessment of the threat Crofut posed.

In fact, on the 911 call, Stebendt tells the emergency operator, “Ma’am, I can’t see his hands. He’s dark.” Strebendt told investigators that he thought Crofut was reaching for his pockets, and he feared he had a gun.

As it turned out, Crofut didn’t have a gun. Crofut was acting strangely because he was drunk, nearly twice the legal limit to drive.  In his book, Arnold explores the possibility that Crofut may have reached into his pocket for a wad of cash he had, winnings from an evening of playing video poker.  Perhaps he wasn’t trying to attack Strebendt; perhaps he was trying to give him cash to avoid having to call the police over the collision.

But Strebendt had no way of knowing all those details at the time.  He had to make a life or death decision in the dark with limited information.  Had the case gone to trial, Mike Arnold would have asked the jury to put themselves in Strebendt’s shoes and judge him only by what he knew in that moment on that dark night.  Would they be able to look past the facts that came out in the aftermath? Maybe. Or maybe not.

The lesson for the concealed carrier is that during a confrontation you may have to make a threat assessment without complete information.  If, after the fact, it turns out you were wrong about the nature or immediacy of the perceived threat, you will likely be judged harshly for the error. 

The Frantic 911 Call

Strebendt’s 911 call is public record, and for those who care to listen to it, a quick Internet search should serve it up.  Perhaps you’ll find a video posted by Gerald Strebendt himself, conveniently entitled “911 Call of terrified UFC vet Gerald Strebendt shooting.”

It doesn’t take a voice analysis expert to hear signs of stress in Strebendt’s voice. He’s distracted and flustered.  He pleads with the advancing stranger to “back away” and “get back from me.”  He’s candid with the dispatcher that he has a loaded gun.  “Is he trying to fight you?” the emergency operator asks.  “Yes,” Strebendt replies.  “He’s coming at me, I’ve got a loaded weapon.”

In his book, Arnold writes, “We tended to feel that the tape of the 911 call, in which Gerald was obviously tense and breathless, would lead any juror to believe that Gerald was feeling fear.” But he also admits that the defense team feared that someone with a skeptical disposition would interpret the recording as representing “a calculating killer trying to cover himself with a slick 911 call. . .”

More and more often, shootings are captured on video or audio recordings.  Don West warns, however, that recordings often provide a limited perspective of a shooting and often capture only a portion of the event.  In Strebendt’s case, the listener can’t know how dark it is, and they can’t see Crofut or how aggressive he seems.  We’re left taking the shooter’s word for it, and there could be valid reasons to question his accuracy or honesty.

Concealed carriers should understand that recordings of a shooting and the events surrounding it will be used to help determine if the shooter had reasonable fear of imminent harm, regardless of whether or not the recordings accurately represent the shooter’s point-of-view.  The actions and statements of a shooter can be misread, misinterpreted, or even seen as self-serving.

Disproportionate Force

Gerald Strebendt was a professional mixed martial arts fighter.  David Crofut was a enebriated 54 year-old. In a fist fight, there’s no doubt who would win. With his training and fighting skill, how could Strebendt be reasonably afraid of a lone stranger on a highway?

Don West says, “I imagine it was difficult for the prosecutor to reconcile. It’s difficult to consider Strebendt didn’t have less lethal options.  Why couldn’t he take him to the ground or do something to incapacite him?” Mike Arnold knew that if the case went to trial, the jury would have the exact same questions. He hired a use of force experts to help put Strebendt’s actions into context.  

One expert was a retired law enforcement officer, and like many cops, he had been trained in the 21-foot rule. Arnold writes, “That’s the distance a charging subject can cover in the time it takes an officer to recognize a threat, draw his sidearm and fire two rounds at center mass.” By the time Crofut had put his hand on Strebendt’s rifle, he had long since passed the threshold where he could have been considered a legitimate threat. 

The other expert addressed the idea of a trained martial arts fighter resorting to a firearm for self-defense.  If Strebendt truly suspected Crofut had a gun, he would have been foolish to confront him unarmed. In Arnolds’ words, his expert “didn’t think that martial arts training would be of help to anyone who is being attacked by a man with a gun.”

Don West said, “It makes you wonder how, with all the experience and training that Strebendt had, that Crofut was able to get so close to him that he touched the gun.” For West, it meant that “Strebendt was looking for an avoidance of somesort. He wasn’t looking to fight him or shoot him.”

For a concealed carrier, it’s important to understand that a suspicion of a gun is not the same as a gun.  While the fear of a gun can be real and reasonable, if it turns out there is no gun, the decision to defend yourself with deadly force will likely seem less reasonable and be judged more harshly. 

Lessons for the Concealed Carrier

The fact that Crofut got close enough to leave touch DNA on Strebendt’s rifle may have been the most important piece of evidence in the entire case.  Mike Arnold felt that this uncontested fact forced the District Attorney into a plea agreement for the lesser charge of criminally negligent homicide, a charge that carried much more lax sentencing guidelines compared to murder.  

Had he gone to trial and lost, Strebendt could have spent the rest of his life in prison.  Under the compromised plea deal, he’d serve four years and 10 months — only 17 months longer than the time he would have spent behind bars awaiting trial without bond.

Mike Arnold was absolutely convinced Gerald Strebendt was justified in using deadly force, and he hated the idea than an innocent client would be going to jail. But he also had concerns about whether a jury would see it his way, or if they would think Strebendt manufactured a scenario and faked a 911 call to justify a road rage shooting.

Imagine if the touch DNA evidence on the rifle had not been recovered.  It wouldn’t have changed what happened on the Bob Straub Parkway the night of January 24, 2014, but it would have changed how many people, including the prosecutors, interpreted what happened.

In his book, Mike Arnold recounts an experience Gerald Strebendt had in the Marine Corps. Gerald had been accused of some minor offence, and his First Sergeant was responsible for getting to the bottom of it. “You say you didn’t do it,” he said. “You may in fact be innocent. But it looks like you did it, so you did it. Perception is reality.” 

The American criminal justice system operates with the presumption of innocence, and the accused can only be convicted if found guilty “beyond a reasonable doubt.”  But that doesn’t change the fact that “perception is reality.”  Jurors will only ever have a limited perspective on the evidence surrounding a self-defense claim, and they’ll be able to render a verdict based only on what they see presented in court.

As a concealed carrier, it’s important to recognize that the moment you use deadly force in self-defense, you are potentially placing your entire future into the hands of a panel of strangers, each of whom will have a different perspective on the shooting than you. 

In the next installment of “The Four elements of Self-Defense,” we will examine how Gerald Strebendt’s post-incident actions affected his legal defense.