The Womack Shooting

Part 3: Provoking an Attack

The defender in the Womack shooting did so many things right that we’ll never know his name. “As in any matter where someone is not charged with a crime,” Montgomery County District Attorney Kevin R. Steele announced, “we do not reveal his or her name to the public.”

Steele’s explanation for why he declined to charge the defender in this fatal shooting constitutes one of the most articulately explained, clear-cut descriptions of a justifiable self-defense shooting that we have come across. Before we get to the prosecutor’s statement, here’s what we know about the shooting:

A little before 10 p.m. on February 28, 2020, the defender and Alan Jamal Womack Jr. were playing opposite each other in a pick-up game of basketball at the LA Fitness in the King of Prussia Town Center outside of Philladelpha. Womack accused the defender of a traveling foul and an argument broke out. Other players stepped in and broke up the conflict, but back on the court, tempers flared and Womack threatened to shoot the defender in the head. The defender had enough and wisely decided to quit, but Womack ended up following him to the parking lot, shouting threats. The defender walked away until Womack caught up to him, pulled a pistol, and chambered a round. That’s when the defender pulled a loaded Glock from his gym bag and fired a single fatal shot.

After a three-week investigation, here’s what the prosecutor had to say: “To be justified in his shooting of Womack, the shooter had to be in reasonable fear of death or serious bodily injury. Evidence that would support a reasonable fear would include Womack’s threatening words, his waiting outside of LA Fitness and following him through the parking lot, threatening him again, pulling out a gun and racking a bullet into the chamber while approaching the other man.”

District Attorney Steele continues: “At no point in the encounter did the evidence reveal that the shooter provoked the decedent or raised the level of force. If he had, the self-defense claim would be invalidated.”

Over the last couple weeks, we have explored how Womack’s verbal threat alone didn’t justify the shooting and how the defender’s multiple attempts to de-escalate the confrontation helped to justify the prosecutor’s decision not to file charges. This week, we’re going to focus on the statement from the prosecutor that, had the defender provoked Womack or escalated the conflict, he would have invalidated his self-defense claim.

In stark contrast to the Womack shooting, we have explored two home defense shootings where prosecutors accused homeowners of baiting would-be criminals into their homes in an effort to create a scenario where they could justify shooting the intruders.

Byron David Smith lived alone in Little Falls, Minnesota, and he claimed burglars had broken into his home and stolen valuable items, including some irreplaceable sentimental heirlooms. On Thanksgiving Day, 2012, he parked his car down the street to make his home appear unoccupied, and when his security cameras captured two teenagers casing the house, he went to his basement, armed himself, and waited for the teens to find him. When they did, Smith shot them both in the head, execution style. He later told his neighbor that he had “solved the break-ins in the neighborhood.”

In Missoula, Montana, a similar story unfolded. Marcus Kaarma had been the victim of a burglary; someone entered his garage at night and stole some valuables from his work bench. In response, Kaarma began intentionally leaving the garage door open at night. He positioned one of his wife’s old purses near the front of the garage, and he set up a baby monitor so he could see if anyone entered. One night, just around midnight, he saw a shadowy figure appear on the monitor, so he grabbed a shotgun, went to the front of his home and fired three blasts into his darkened garage. One shot struck and killed a seventeen-year-old foreign exchange student who was believed to be “garage hopping” — looking for beer in garage refrigerators.

Both men were charged with the equivalent of murder, which, at first, sparked outrage from many self-defense advocates who felt the Castle Doctrine should have protected the defenders’ decisions to use deadly force against home intruders. However, as the troubling details emerged, it slowly became clear that the defenders had baited the criminals to their homes with the intention of setting a trap so they could kill them. The shooters weren’t afraid; they were angry and out for revenge.

Outside the home, we’ve seen cases where the shooter’s self-defense claim was weekend by provoking confrontations. In the so-called “loud music case,” Michael Dunn parked next to a car full of teenagers listening to loud rap music. When his girlfriend went inside to buy snacks and wine, Dunn asked the teens to turn down their music. Jordan Davis, a passenger in the back seat, became enraged and started shouting at Dunn and issuing verbal threats. Dunn responded by retrieving his pistol and firing several shots at the teens’ vehicle, striking and killing Davis. At trial, prosecutors emphasized that there were other unoccupied parking spots available at the convenience store that night. They cited Dunn’s girlfriend’s testimony that the defendant heard the music and complained about it before parking directly next to the teens’ vehicle. They painted a portrait of a man who wanted to pick a fight with the teenagers over rap music, knowing that he had a gun in his glove box should things get out of control. Dunn may not have intentionally set a trap like Smith and Kaarma, but prosecutors successfully argued that he provoked the teens, fanned the flames, and made no effort to de-escalate before resorting to deadly force.

In North Carolina, New Year’s 2013, Gyrell Lee was celebrating the holiday in the yard of his cousin’s house when, throughout the evening, Quinton Epps, a “known troublemaker” according to the local paper, came by multiple times resulting in repeated and escalating confrontations. At one point, Lee retrieved a pistol from his car, “just in case,” he said. Later, Lee and his cousin walked a few doors down the street where Epps had parked and a fight broke out. Lee’s cousin started it by punching Epps in the face. Epps responded by shooting the cousin multiple times. Lee said Epps started to turn the gun on him, so he fired and killed his attacker. After an emotional trial, a tearful jury reluctantly convicted Lee of second-degree murder.

While, Markus Kaarma literally opened the door to an armed conflict when he staged his garage to attract an intruder, Gyrell Lee figuratively opened the door to the ensuing gunfight when he anticipated trouble and armed himself before re-engaging with an individual with whom he had an on-going conflict. When teenagers broke into his home, instead of calling police or trying to scare the intruders away, Byron David Smith waited quietly in his basement until he had the opportunity to shoot them. Michael Dunn went out of his way to confront a group of teenagers about their loud music, and he was too quick to turn to deadly force when the encounter erupted into anger. All of these men provoked the confrontation that resulted in the use of deadly force.

Don West, criminal defense attorney and National Trial Counsel for CCW Safe, explains that the legal definition of provocation is different from one jurisdiction to the next, but “in a nutshell, you can’t claim self-defense if you provoke the confrontation. . . which basically means that you initiate a conflict with the expectation or the hope that the other person responds so that you can then inflict harm.”

“In some places,” Don explains, “provocation isn’t much more than starting the sequence of events that later leads to deadly force. In other places, it means that you have to initiate conflict with the full understanding and expectation that the person will respond to your provocation or to you baiting them, and that gives you the opportunity that you were looking for right from the beginning to respond.”

Regardless of what the exact laws are where you live, as a responsible gun-owner and concealed carrier, you are wise to adopt the strictest interpretation of these laws. Don West reminds us that prosecutors frequently look at the “totality of circumstances” when making charging decisions, and they often have to justify their charging decisions to the families of the deceased and sometimes to the public at large. Smith, Kaarma, Dunn, and Lee, by opening the door to the ensuing conflicts, all gave the prosecutors in their cases every justification needed to file charges. In contrast, the defender in the Womack case gave the prosecutor every justification needed to clear the shooter of all wrong-doing.

The lesson for the concealed carrier is that you should never open the door to a conflict that has the possibility of turning violent, and instead, you should make clear, demonstrable efforts to close the door to unnecessary confrontations by de-escalating and disengaging whenever it is safe to do so. If trouble still finds you and you must use deadly force in self-defense, your prudence may give a prosecutor ample reason to find your actions justifiable. 

---