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Transcript of Podcast
Shawn Vincent:
Hey everybody, I’m Shawn Vincent. Thanks for joining the podcast today. We’ve reached Lesson 4 in our exploration of the 36 Lessons for Armed Defenders. This is an important one. We’re going to get into the actual legal threshold that justifies the use of deadly force. We have Don West—he’s National Trial Counsel for CCW Safe and a veteran criminal defense attorney. He’s going to give us the legal definition. And then Steve Moses, our friend, the well-regarded firearms trainer, a veteran of law enforcement—he’s going to give us the tactical translation of the law so you, as an armed defender or a concealed carrier, are armed with the knowledge of when it’s justifiable to go to your firearm to solve a self-defense problem. I’m glad you’re here. Here’s my conversation with Don West and Steve Moses on Lesson 4: The threat must be Imminent and Serious.
Alright gentlemen, so we’ve made it now to Lesson 4 of our 36 Lessons for Armed Defenders. We’ve already talked about Lesson 1, which is that The Goal of Self-Defense Is to Break Contact. It’s to stop the attack and the fight, hopefully in a way where everyone can walk away. But if you have to do what you have to do, that sets up the armed defender’s dilemma that plagues us for the rest of our conversations about the 36 Lessons. We’ve talked about Lesson 2, which is Get Training. Steve, you gave us a lot of great insight into that, that you can’t just get a firearm and even take just the minimum required to get a permit, where that’s required, and then consider yourself proficient to start making life and death decisions with a firearm.
We had a great exploration of that. And Steve, you’ve brought so many great, well-renowned trainers and experts to the podcast. That was huge for me when I was doing the research for these articles, being able to go back and pull just one great quote after another from these folks, and they’ve taught us so much. So that’s been huge. And then Don, our members have heard you and I talk about the legal consequences of self-defense, looking at how some cases that we’ve studied ended. Some of them poorly, some of them had better results for the defender. But then you and I have been in the trenches on some cases together, and we know that even if you’re ultimately found not guilty or otherwise exonerated, being caught in the criminal justice system is a consequence of its own. And then that all leads us up to, now that we’ve laid that foundation, now I think we get to the nuts and bolts of: When is it justifiable to use deadly force in self-defense?
And Don, we are talking to a national audience here, anyone in the United States, and the laws in each individual state and jurisdiction vary a little bit on when the use of deadly force is justified. But my experience has been that everywhere relies on the same basic foundation, and that is that the use of deadly force—with a few exceptions of protecting others and stopping forcible felonies—the use of deadly force is only justified when the defender reasonably believes that they face the imminent threat of severe harm. That’s great bodily injury or death at the hands of another. Do you feel like I got that right?
Don West:
Yeah, I do. There are some differences among the states, for example, when there’s an aggravated felony that you can use deadly force to prevent. There are other circumstances where there may be certain presumptions of the legality of your conduct in certain scenarios, but the core self-defense principles that you’ve just identified, when facing an imminent threat of great bodily harm or death, are the core principles and elements of self-defense. And those are remarkably consistent and uniform all around the country.
Shawn Vincent (05:12):
And I think because we deal with people who are learning these lessons in so many jurisdictions, always when we talk about it, we like to take it from the most restrictive, the most … the least defender-friendly laws. We know that there are stand-your-ground states and there are duty-to-retract states, and that affects how the law looks at your actions. But I think when we’re learning lessons from these cases, if we assume that we’re in the most restrictive states and learn our lessons from that, that’s going to serve us well, no matter where we live. And so I think we’re going to explore this with that precondition in mind.
And so here’s what we want to do. There’s a lot there. So I’m going to sort of restate it in simpler terms for the purpose of our conversation. But the use of deadly force is justified only when the defender has a reasonable belief that they face the imminent threat of severe injury, which is death or great bodily harm. And there’s a lot there. And to use a legal term, Don, we’re going to bifurcate this conversation. We’re going to, in the next lesson, we’re going to talk a lot about what constitutes a reasonable belief, and it’s going to include a conversation about the objective and subjective look at the defender’s actions. And Steve, it’s going to address a lot of things that touch on the ambiguity of understanding those first two elements of: is the threat imminent, and is it severe? But what that’s going to leave us for this lesson now is a conversation about: What does it mean legally when we say severe and great bodily injury? I think we know what death means, but great bodily injury has a lot of different definitions, and each state calls it something a little bit different, too. And then Steve, you were telling us about how you approach students when you talk about this idea of imminence. And I’d love for you to start us out there and tell us: What do you warn, as an instructor, your students about when you talk about that imminence factor?
Steve Moses:
Well, I tell them that is one of the three primary factors that need to be in play before we can use force, much less lethal force, against another person. And imminent has kind of gotten watered down over the years. We hear things about the imminent doom, the imminent collapse of the political system, et cetera, et cetera. And so people don’t have perhaps a real clear understanding of what that term means. And so what I tell my students is that when I say imminent, I mean immediate. That if you do not act right now and take an action to defend yourself, that you will very likely get seriously injured or killed.
Shawn Vincent:
Yeah, I think Don, you and I live in Florida. You used to live in Florida, you guys are in Texas, and you’re a little inland, but Texas still gets hurricanes from time to time. And you know that when a storm’s coming, they see it coming from a long way out. And when you’re within maybe 24 hours of a landfall, they talk about how landfall is imminent. But the truth is, when they’re using that term, you’ve still got a lot of time to prepare. I was told once that “the doctor will see me imminently,” and I was like, “yeah, sure they will, right.” So what you’re saying is, legally and tactically, when we’re talking about self-defense, when we say imminent, that means that your time for other options has pretty much been exhausted, and now it’s do or die, literally, right?
Don West:
Yeah. Let’s take half a step back and talk about imminence as what it’s not as opposed to what it’s. I think the concept revolves around the notion that imminence means “now,” as Steve said, and we can talk about what “right now” means—or five seconds from now or 15 seconds from now. But what it doesn’t mean is a future threat of some sort. So by way of example, if you’re squaring off with somebody and the confrontation is escalating, and the guy says, “Give me a second, I’m going to go out to my car and get my ball bat, I’ll be right back.” Well, that’s legally not an imminent threat. It may become one if the guy actually does that and is somehow able to find you still there. So future speculative … those aren’t imminent threats. Imminent means, among other things, real and now, in the context that Steve is talking about, not something that may occur down the road or something perhaps that’s physically impossible, you can’t be facing an imminent threat—even if the guy with the baseball bat fully intends to use it to cause that serious bodily injury or death—if he’s 150 yards away.
Shawn Vincent:
So Steve, that brings us into something that you taught me that I think is a great tactical companion to the idea of imminence and severity. And it’s what Don just mentioned there. You taught me that the attacker has to have the ability to hurt me or kill me right now, has to have the intent to do it, and then, more than that, has to have the opportunity to do it. So when Don’s describing this guy who has a baseball bat and says, I’m going to beat you to death with this bat—he’s got the ability and the intent. But if he is, as Don said, 150 yards away or even perhaps on the other side of an automobile, the opportunity, if I understand what you’ve taught me, isn’t there yet.
Steve Moses:
That’s correct. That’s correct. And I think that’s very, very important to understand that. And I know we’re going to discuss training at some point, but the more that you are trained and skilled and have thought in advance how you’re going to handle a situation like this, the more time that you have to assess the opportunity, much less act upon it. So some of the people that I trained with, some of the instructors, Tom Givens, Chuck Haggard, Claude Werner, all of them are examples. They could pretty much let it get down to a second or two before it’s necessary to respond, and be very much assured that they’re going to have success.
Shawn Vincent:
So there’s confidence. Our viewers at this point, if they’ve followed us in succession, have heard our podcast on training and read the article, and it is just what you said. You stress that there—that if you’ve got confidence in your skills, and you know how long it’s going to take you to draw and get your weapon into action, that gives you more time to judge these things like the ability and the intent of your attacker.
Steve Moses:
And just to make sure that it’s not false confidence, you’d better have been able to train and demonstrate under time pressures. I love for my students to go shoot competitively that, yes, I can back up what I think I can do. As opposed to a lot of people who think, “Okay, well, I’m just going to default to the crisis and not to my training.”
Shawn Vincent:
I like that difference between what you know you can do from experience, and what you think you can do. Have you ever seen those surveys where they ask 50 men and 50 women if they think they could land a commercial airlineer if the pilot had an emergency, and some 65% of guys like, “Yeah, I could probably figure that out.” And then only 15% of the women suggest they can do it. It’s easy to be overconfident in your competency, right?
Steve Moses:
Absolutely.
Shawn Vincent:
Yeah. So the whole idea of the armed defender’s dilemma came up after Steve taught me about ability, opportunity, and intent. And I felt like most of the most controversial cases in self-defense that we face are generally when you have an armed defender who uses the firearm against an unarmed attacker. We know that fists and feet can be fatal, but we’ve talked about this already that prosecutors and juries don’t like it when someone brings a gun to a fist fight, so to speak. And what we’re talking about there, Steve, I see you nodding your head, is that the ability of the attacker when they’re unarmed and the defender is armed is under question, do they really have the ability to cause great bodily injury or death when they’re unarmed, and you are?
And so Don, I bring that up because when that ability is questioned, now that’s the armed defender’s dilemma. We don’t know if we’re justified or not, but also, when we saw the Daniel Perry case, where the guy had Garrett Foster … it was in a protest situation. He was in this mob surrounded, and he had this rifle, and he came up, and he felt like, in an aggressive way, he certainly had the ability in the opportunity to use that rifle against the defender, but we didn’t know what his intent was. So that’s another where we have a question mark on one of the main things.
Don West:
Well, in my silly little example about the guy going out to his car to get his baseball bat and come back in, let’s imagine he does that, and he goes back in to confront you, and he’s not carrying a Louisville Slugger; he has a wiffle ball bat. Now, the ability to inflict harm doesn’t necessarily mean the ability to inflict deadly harm or harm that would cause serious injury. So it’s assumed within self-defense law that there can be physical contact, there can be pretty significant physical contact, but if it doesn’t rise to the level of serious bodily harm or death, or the risk of … keeping in mind, you don’t have to wait to get beat up or shot before you defend yourself. But your perception is they have the ability, as well as the intent and the opportunity to inflict serious bodily harm or, in fact, cause death.
So that’s part of your assessment that the whiffle ball bat may be, at least from a prosecutor’s standpoint, the same as an unarmed person, fists or feet or what have you. It’s not the kind of instrument that is considered by most to be a deadly weapon. We all know that virtually anything can be used as a deadly weapon in the right circumstances, but it’s not a knife—it’s not a true blunt instrument that can cause severe trauma. It’s not a gun. It’s not, in a sense, per se, a deadly weapon. And that’s when I think some of the confusion, some of the ambiguity, and your process of how to handle that becomes a little more treacherous.
Shawn Vincent:
And we’ve heard stories, we’ve talked to folks who in law enforcement, that’s a real challenge, Steve, when someone goes for … reaches in their pocket and pulls something out. Now you’ve got a law enforcement officer who has to decide very quickly, what’s this thing coming out of this guy’s pocket? We talked to … you brought a guest on, it was Erick Gelhaus, and he was a law enforcement officer, and he was involved in a shooting where a young person, like a teenager, drew a firearm on him, and he responded, but it turned out that the firearm was a pretty convincing replica.
Steve Moses :
An AK-47, I believe it was, I don’t think it was a pellet gun, I believe it was an Airsoft rifle. They put … there was orange tips on them. And it’s not unusual for guys that actually hold up 7-11s and stuff, to use an airsoft pistol, and they’ll either remove that orange tip, or they’ll spray it black. And then I don’t care how good you are when stuff’s happening pretty fast, it’s almost impossible to discern the difference between an airsoft pistol and a legitimate firearm.
Shawn Vincent:
And he was ultimately exonerated for that shooting after a terrible ordeal.
Steve Moses:
Yeah, it was bad. It was bad. It kind of felt like the justice system did not help Eric out very well at the beginning—kind of left him out to hang out some of that. I’m just trying to recall from memory, but I believe that that is the case. And I actually read that in an article in which he either he wrote, or someone else wrote about it.
Shawn Vincent:
But Don, so that just complicates things more when we explore this, right? Because you can have somebody who, if they’ve got a plastic yellow whiffle ball bat that’s cracked and obviously plastic, that’s one thing, but they could have a fake, replica firearm that looks compelling. And I think … what I’m getting at here is that the defender doesn’t always have to be ultimately correct. It’s convincing that, and we’re going to talk more about this when we talk about the reasonableness factor, but it’s convincing that they had every reason to believe that the ability was there, that the threat was real, right?
Don West:
Yeah. In a sense they had to reasonably believe the threat was real, and that’s their own belief system. The way they process the information, how they conclude it. It’s certainly something they will need to articulate in some fashion, especially if it turns out not to be a true kind of deadly weapon. So that’s their sort of subjective belief process. And then of course, it also has to pass muster of the jury and whether or not that process whereby the defender concluded they were facing this threat of great bodily harm or death was more objectively reasonable, in a sense, to a third party.
Shawn Vincent:
What I wanted to throw out there is this idea that if someone was going to have some check boxes as they approach an unknown threat or a situation that they think could become explosive, and they have this in mind—this person has to have the ability, the opportunity, and the intent to go there—that means that they’ve got a structure for navigating the next few moments of their life. And Don, we’ve talked over and over again about how in almost every case that we’ve looked at, there were clear opportunities for the defender to make other choices that would avoid the confrontation or could have led to a different outcome. And to go back to the scenario that you started us out with, the guy goes, “I’m going to go get my bat, and I’ll be right back.” That his intent is there, and you believe him that his ability is going to be there, and now the opportunity is closing. And so you have a choice to not wait there for it and to do something else, right?
Don West:
Yeah. And if you think about it, if you have otherwise clean hands, meaning you didn’t start this or you didn’t provoke it in some way, you were truly threatened by someone who had the apparent ability or soon would get it, and then the opportunity and the intent in most jurisdictions legally, you could stand there and wait for him to come back and prove that what he said was in fact what he meant. And under the right set of circumstances, you could use deadly force to defend yourself from this guy who is about to hit you with a baseball bat.
You can imagine, though, that may not be your best scenario under these facts, right? You’ve got, clearly, an opportunity to get away while he’s out in the parking lot rummaging through the trunk of his car. You’ve got other things you can do to avoid that whole confrontation, even if at the end of the day, you might be perfectly legally justified to use deadly force against this person who was just about to use it against you.
Shawn Vincent:
Before we leave this topic, I think it also gives us an opportunity to talk about disparity of force. We’ve talked about disparity of force, a little bit about, if you’re an armed defender facing an unarmed attacker. But Don, you and I talked to a group a couple of months ago, and the Curtis Reeves case came up—that’s the Movie Theater Popcorn Shooting where you had a man in his seventies in a prone position in a movie theater chair. And then you had a guy who was in his forties and by all accounts pretty well built, leaning over that back of his chair and being aggressive and threatening at him. And he faced trial for that and got an acquittal, I think in large part because even though the attacker was unarmed, he was so much more physically able, this goes to Steve’s ability, right? He was just more physically able to do it, whereas if they had been more evenly physically matched, it’s not the same conversation.
Don West:
In virtually every jurisdiction that I’m familiar with, when you have a situation like that, what the prosecution will characterize as an unarmed person who is attacking an armed person, there will be jury instructions that talk about the relative abilities and capacities. So that directs the jury to look at the physical size, and that would expand to special skills or abilities, size, weight, age. And I think that also extends to particular vulnerabilities, which might mean … Steve, as a trainer … how your body is positioned can be advantageous or horribly disadvantageous if someone is physically attacking you. We know from high-profile cases about people being knocked to the ground and then on the ground and trying to defend themselves against someone that appears to be unarmed, but has a much superior position from a physical standpoint and is much more able to inflict serious injury or death in that, in some respects, because of the positions of the two individuals.
Steve Moses:
I just have to agree very much with all of it—that discerning ability is one of the biggest problems. It’s not that difficult to see if a person has opportunity. In a lot of instances, we can clearly see that the person has the ability, and then it becomes a matter of intent, which can be masked. It often is masked by people using guises or ruses of some sort to get close enough to go ahead and attack you. And then again, just creating distance or making an attempt to create distance may do one of two things or both. And one is that it could lessen their ability or lessen the opportunity that they have. And secondly, alright, it can give us an idea as to what their intent was. So if I yell at somebody: “Stay Back!” and that person keeps coming, and let’s say for instance, I put my hand on my shirt, I’m going to pull a gun up and I start moving and they continue to ingress on me, then, right then I’m like going, “Okay, this looks like it clicked all three boxes. I’d better get ready to do something.”
Shawn Vincent:
Well, and you’ve just explained what would be, for that defender, articulable thresholds that this aggressor crossed that made them, that they could explain, made them more reasonably in belief that this person may cause them harm. And while you’re explaining all that, I’m thinking about the conversations we’ve had with Craig Douglas and his MUC, his Managing Unknown Contacts training—including those verbal cues, that there are things that you can do, thatyou can learn from taking training, that would allow you to disambiguate that intention, which is the trickiest of those three elements.
Steve Moses:
And since we’re talking about Craig Douglas, I consider him to be, as far as I’m concerned, the father of retention distance shooting, which is the ability to get a gun into play. I know some of the guys don’t like to hear that term, but get a gun into the fight and hold it in a position that you can actually use it effectively when you are entangled, and not only get some hits that diminish that particular person, but also make it difficult for them to get their hands on that gun and disarm you. So now we’ve kind of circled right all the way back to training, but if you have some of these skills and you know that you can use that handgun at basically a matter of inches, that’s going to look real good to a jury, at least in my opinion.
Shawn Vincent (28:50):
Don, you said you don’t have to wait in all circumstances to receive the physical blow, but if you can wait, if you feel like you’ve got control over the situation enough … and Steve, you’ve talked about, in other podcasts, techniques to make sure you can survive a head blow and things … and Don, you told us about defender you encountered who was put in a choke hold, but he recognized pretty quickly it wasn’t a very good one and that he had the skills to get out of it without having to shoot this guy. And he did, and that was a much better outcome. So to put a fine point on that, Steve, especially with the retention shooting stuff, a lot of people will bring that gun out early in an ambiguous situation because they know that, if this guy gets a jump on him, they might not be able to get it out, or they might lose it, or it might be used against them, or they don’t even know how to safely use it at close distance without shooting themselves with it—which happens more often than people realize. But if you’ve had that training, then that buys you a little bit of time to really know for sure if the person means what you think they mean, and that’s going to have two effects, right? One is it is going to keep you from shooting them if they actually didn’t mean that harm. And then if they did, it’s going to make it that much easier, Don, for you to explain your actions and to make a self-defense claim that’s justifiable.
Don West:
Exactly. And I think that Steve’s really touched on something here that you’ve followed up on, Shawn. We know from the cases that we’ve been involved in, the cases that we’ve learned about, and just watching self-defense stuff over the years, these things don’t happen as linearly and as predictably as we would like them to be able to do. Then we could control the situation and make good decisions all of the time. At the same time, we also know that while you want to be able to avoid the use of deadly force if at all possible, and we know what the context of that is, we also know that you can use deadly force against an unarmed attacker under the right set of circumstances because that person truly can cause serious bodily harm or death. It’s kind of putting it all together and making it work. Now, you may have heard the 21-foot rule. I talk about that today only because that’s kind of a distance that people hear and talk about as being how far away someone with a blunt instrument or an edge instrument can be before they can be on you quicker than a well-trained person. A police officer can actually draw a gun and use it.
Shawn Vincent:
About 1.5 seconds is the time.
Don West:
Yeah, that kind of boils down to about 21 feet. So I’m sort of, I’m rambling here a bit, but my point there is when Steve was talking about, hey, get back, stop or go away or doing things before you go to the gun, you’re not only giving them a chance to change their mind or to make it clear what their mind is telling them to do, you’re buying some time to make some decisions. You’re also assessing the situation as it goes. And as this thing continues to escalate, as you sort of hone in more on what they’re really trying to do and intend to do, it also gives you an opportunity, if those voice commands and other things fai,l to do a defensive display. It’s sort of the last step before you wind up having to use deadly force. That’s how the 21-foot rule in my mind becomes sort of juxtaposed against this notion of imminence and immediacy. Well, if you wait until a person is 21 feet away, roughly, that has the ability and the intent, they’ve got the opportunity if they close that gap.
So when we talk about imminent, I want it in the context of: something needs to be done. And I also believe that you need to have those choices that you exercise within an amount of time that gives you a way not to shoot them if there’s any way to do that. So I didn’t say it very well, but what I’m really talking about is if you wait until the last half second, you’re going to run out of time to exercise any other option other than the immediate use of deadly force when a display might work, or some other less lethal option might de-escalate enough to end it.
Shawn Vincent:
Sure. Just recently, in some of my research for our project, I watched a great interview with Dennis Tueller, who did that drill back in 1983, I think, early eighties. And he published it in SWAT Magazine, and basically that was it. The question was “How late is too late?” and people were firing at a pretty standard, that’s what, three yards, right? No, seven yards. Seven yards. And there was an average draw time of about 1.5 seconds with the equipment that they’re using, and they found that draw time and that distance sort of equated, and if you had someone charging at you with a weapon or any threat for that matter at that distance, that’s about where it’s too late. But in that same interview, he talked about how, I know famously, we know that he doesn’t really love the idea of the “Teuller Rule”. He referred to it as a “principal,” as the Teuller Principle, if you’re going to call it that. And he stressed something Don, I thought you’d respond to. He said it’s a guideline. It all depends on the totality of the circumstances, meaning that meaning that, if you look at … he’s a sprinter as opposed to someone in a wheelchair, the distance is different, and you have to take in what you know and what you know about your own abilities to decide what distance is.
Don West:
Yeah. The totality of the circumstances notion is ever-present in a criminal courtroom when you’re judging and deciding in somebody’s actions and decision-making, asking for the trier of fact to look at these circumstances in the totality of all of the circumstances. And we talked about that, whether the decision-making was reasonable or not, they consider the totality of the circumstances as you do when you’re evaluating that moment that you’re going to have to make some decisions.
Shawn Vincent:
So you’ve brought up distance there with the Tueller Principle, and Steve, you’ve talked about distance there too, and it all equates to time in a lot of ways—the opportunity to make other choices. Don, you illuminated some of those. Steve, you’ve talked about some of those things that you can do in training, and that would include using verbal cues, preclusion techniques, and less lethal options. And I bring that up now because what these statutes, what we talked about, was the justification for the use of deadly force. And the big controversy here is using deadly force against a so-called unarmed threat, someone who doesn’t have a weapon, even though they still might pose the threat, it’s not as apparent, it doesn’t say you can’t use force to meet force, right? There’s a proportionality thing there that comes into play that makes this a little bit more complicated. And Steve, you were hitting on this a little bit when you talked about what you can do to supplement your training and maybe different tools to use to negotiate that.
Steve Moses (37:42):
Okay, I’d like to do that, but first, I’d like to circle back to the 21-foot principle. A lot of people believe, okay, I’ve got a 1.5 seconds to make a hit, I’ll just do it. That is extraordinarily, extraordinarily difficult to do. It’s most especially true for concealed carriers because you have to clear that garment, get your hands on it, bring the gun, bring it up to almost horizontal, catch the front side, and then fire that shot. Most people can’t do that. The majority of concealed carriers can’t do that. The majority of law enforcement officers can’t do that. And there’s another thing. If I’m standing there and I’m just talking, and all of a sudden this guy moves—as opposed to a competitive shooter who is waiting for a beep—I want to be slower on my response time. So that 1.5 seconds was just basically, “Hey, you need to understand that somebody can move that fast.” So does that mean you may need someone to be at 14 yards in order to accommodate your three-second draw and more?
What’s going to stop that attacker is that person who’s like, “Okay, I’m done. I don’t want to be shot at, I don’t want to be shot anymore.” Or is it, “I have no choice?” That is, my body physically will not allow me to take any further action. Most people think that a shot to the heart is instantly incapacitating. From what I understand from the Tactical Anatomy sAhooting With X-ray Vision instructor course is that of all the people that go into surgery to the emergency room in a big city in California with a wound to the heart, a bullet hole in their heart, approximately 30% of them survive.
If you shoot a grown man in the heart and he doesn’t want to stop, he is determined that he wants to continue this fight, he’s probably got another five to 10 seconds to do. So if I need to stop this guy, basically what I’m going to have to do is I’m going to have to get a high central nervous system hit, which is going to be on something that’s maybe an inch in diameter. I’m not really sure how big a spine is. It’s protected by bone. Or the great vessels above the heart. So we’re talking about the superior aorta, pulmonary trunk, vena cava. If I can get a hit there, probably that person’s going to be down maybe three or four seconds, just simply … they’re not dead, it’s just that it’s cut that blood off to their brain. They no longer have oxygen, and then they’re going to collapse. So what this means is if this person is seven yards away, I’m going to probably need to be able to respond to that, make a hit in under a second, and I’ve got to hit them in this very small area on a person that’s running towards me. And so basically they’re moving up and down left to right. It’s almost like trying to land an airplane on a carrier.
So what that says is we need to have a game plan in effect, and part of that game plan may be that he moves, I move. It’s almost like a matador and a bull. That bull comes charging at you, and you’re able to step, this is going to sound weird, offline at about a 45-degree angle going forward. The person … you’re no longer there where that person was running, so then they have to stop, recover, and come back to you. And that’s why training is just so, so critical. Can’t emphasize it enough.
Shawn Vincent:
Yeah, I think one of the things we get into when we bring up Tueller Principle in that distance there, some of those scenarios that you were describing, Steve, I think are pretty uncommon when we deal with actual, real-life self-defense cases. If you’re in combat, then yeah, you’re going to be closing with people that I think the average armed defender, the chances that they’re going to encounter somebody who’s at 21 to 50 feet who is at full sprint towards them with an obvious weapon is relatively low. We don’t see that happen a lot. That’s an extraordinary circumstance that law enforcement officers want to keep in mind when they’re dealing … because we send them to close contact with aggressive people. That’s their job. The society relies on that. But as an armed defender, what I’m hearing you say is that, once someone who you find suspicious starts entering into that sphere, whatever it is in your mind, based on what you understand your abilities are, you start changing your posture and your tone and engaging in other things, changing direction that will help you determine if that person actually is a threat. And then we get back into determining their intent and assessing their abilities and their opportunity to do harm. And now you can start making refined decisions based on how they respond. That’s what I’m getting from that.
Steve Moses:
And this is the place where defensive display comes into play, in that, if I do nothing more than this person is approaching me, I’m telling them to stay back. I believe that they have the ability and opportunity to seriously hurt me, or perhaps they’re holding their hand behind their back. Maybe they have a knife or a club or even a gun. At that point, I’m going to feel pretty confident that I can lawfully get my hand on that gun and tell them to stay back and be prepared to draw that gun and engage much faster. And the slowest part of a draw is going to be getting to your gun and getting your hand on the gun in a firing grip. If I’ve all gone ahead and … of my three-second draw, I knocked off two seconds by getting my hand on the gun and clearing my garment, well then I’ve got additional time to either shoot if that person brings up a gun or again step offline and shoot.
Shawn Vincent:
This is one of the remarkable things, Don, that we discovered in all of our explorations, that, how often, when somebody responds to the gun being drawn, there’s a last opportunity to not shoot. If that person responds, and all of a sudden their appetite for a conflict can diminish very quickly, and that might’ve ended it, and if that ends it, then you don’t need to use deadly force. And in fact, you might not be justified anymore if they are responding to it.
Don West (45:28):
And if it doesn’t work and you do wind up shooting someone because they are escalating, they are indeed posing an imminent threat of great bodily harm or death, and nothing you’ve done so far has deterred them, and you’ve tried a couple of things, whether it’s the voice commands or the defensive display or what have you—that’s all good for you when you wind up having to justify your decision to use deadly force. So from a trial lawyer standpoint, that’s gold in ascertaining “What was your reasonable belief? Was it objectively reasonable? What did you do to avoid having to use deadly force?” All of that is so valuable in showing what you are actually going through and also helping to illustrate what the attacker was thinking and what their intent truly was if they’re disregarding voice commands and such. One last comment on this, the 21-foot research is to dispel a legal myth that I’ve heard a couple of times, and that is, it’s not the red zone. You can’t shoot someone just because they’re less than 21 feet away from you. It’s some research to help you better understand the dynamics of an attacker. It’s not the get out of jail free zone less than 21 feet away from you. So keep that in mind before you mention to the police officer, “Oh, he was less than 21 feet away. I waited until he got 19 and a half feet away.”
Shawn Vincent:
Yeah, yeah. I should get a pass for that. Right. Before we wrap up this part of the conversation and move into the next lesson, let’s talk about this idea of what great bodily harm is. I’ve seen it as great bodily injury or great bodily harm. This is the threat that a defender faces doesn’t necessarily have to result in their death to justify use of deadly force, but if it is reasonable that they could really jack you up and cause life-altering injuries, that would be permanent impairments and disfigurement. This is the type of stuff that starts to get to the level of great bodily harm or great bodily injury, and there’s no defined legal threshold of what that is. There’s not a matrix where, alright, one tooth is not great bodily injury, but 25% of your teeth is great bodily injury, if they knock ’em out. But we’re talking about a type of assault that could knock you out and leave you prone to further attack. We’re talking about things that would cause you not to be able to breathe or constrict your blood flow to your brain.
Don West:
Well, the point about it could knock you out. That’s the fistfight, isn’t it? That’s just a bad outcome of a fistfight. So I think the law presumes that you can have an exchange of blows, and that’s not considered great bodily harm or the risk of great bodily harm or death. There would be a point in time when you were at risk of being beaten mercilessly. That’s the hard thing. You kind of know it when you see it, but it’s really hard to define. So it’s vague: loss of a bodily function, broken bones, severe scarring—the kind of stuff that most people would say, yeah, that’s more than a fight to the point where it’s likely you would lose consciousness and be at risk of further harm and be at risk of death. There’s no bright line there that you could say to yourself, well, he just crossed that line, so therefore I’m now at liberty to use deadly force in response.
Shawn Vincent:
“Liberty,” I like that word. Yeah, that’s great. We talk about “When can I shoot?” And we really talk a lot about “When must I shoot?” There is no liberty to shoot. There’s only the last resort option when you think that your life’s about to be altered permanently or ended by this person. Steve, as Don was talking there, it reminded me of some conversations that we’ve had with Craig Douglas, with Tatiana Whitlock—how it’s good to, if you are physically able to do this, maybe take at least a little bit of martial arts training, get in a circumstance where you understand what it takes, what it feels like to take a hit or to be in close quarters or … I know one of Craig Douglas’ classes they put a helmet on you, and somebody simulates an attack that goes to the ground and you have a chance to sort of viscerally feel what that’s like and how you might respond to it.
Steve Moses:
Yes, and I’ll tell you what, it’s also important, though, that we understand that conventional martial arts, even including Brazilian jiu-jitsu, won’t prepare us for that. There’s a sporting aspect to it. The great thing about Brazilian jiu-jitsu is it’s pressure-based. You actually apply these techniques in training while in a permissive grappling with another person in order to develop those fighting abilities. But if you can’t sustain a punch, and for me it’s not about how strong my neck muscles are. I mean, that’s a big part of it. If you turn the chin fast enough and get that brain smashing around, you can be knocked out. So I’m really picky about that. When I talk to people, I say the thing, I love martial arts, and I recommend that you do it, but I also recommend that you start off training with someone that, like Craig Douglas, some of the other persons in the ShivWorks collective.
There are a bunch of instructors who have taken that ECQC class and teach default cover because the main thing is I’ve got to be able to protect my head. There’s a way of doing it. It’s called default cover. It’s a way of basically wrapping your hand and your forearms and even your biceps around your head so that someone can’t hit you on the sweet spot. They can’t hit you on the chin, they can’t hit you on the temple, can’t hit you on the side of the neck. All these areas so that even if you are struck, although you know what, it may injure you somewhat, it won’t knock you down, and it won’t knock you out. Again, I encourage … start with Craig Douglas’ default cover. Google that, folks. He does it. I’d learned it from him.
Shawn Vincent:
We had a great podcast with him once where he talked a lot about that. And Steve, I guess to kind of wrap it around to something we talked about before, as we close up this conversation for this lesson, you talked about it when you mentioned retention shooting, right? That means that you can tactically afford to let someone get a little bit closer if their ability is ambiguous or their intent is ambiguous. If you know you can safely deploy that weapon in close proximities and solve that problem if it gets to that level. But also, knowing that you can take a punch isn’t so much so that you can take a punch if you’re sure that they really mean to hurt you. But I think it keeps you from using deadly force too soon if you’re not as afraid of that punch. Right. If you know that we, a little physical tussling feels like in that you’re confident you can handle a little bit. It doesn’t mean you have to wait to be down, but it means that you won’t be as at risk at acting too early with your firearm.
Steve Moses:
Yeah. I like what you said, especially at the end, it allows you to wait a little bit longer knowing that if this guy suddenly attacks me and he’s rushing, and it may be he’s coming from the side, it could even be coming from the back. People will run up behind you and try to hit you in the back of the head, which is very effective at causing concussions and such. So being able to defend against that, which default cover does indeed that— so that you can then get your firearm in play, or in many instances, it’s like, I don’t need to resort to my firearm because I can handle this person. These are all important things, and default cover works right into guess what? Retention shooting— having this knowledge that, yeah, if this does start, I can, at the very minimum, protect myself from getting knocked out. I think is just a real critical, I guess the word would be skill. Yeah, skill. Having that knowledge and the ability to do that, which again involves training. I think what you would probably see is that CCW sSafe, the number of cases that they get in which somebody has been arrested for aggravated assault or brandishing. I’m sure there are a number of different legal terms for that. I think they would probably be greatly reduced.
Shawn Vincent:
People who have more training have more confidence.
Steve Moses:
Yes, sir. And ability. You have more competence, too.
Shawn Vincent:
Alright, everybody, that’s the podcast for today. I appreciate you listening through to the end. Our next installment is going to be Lesson 5, which is sort of the other half of this conversation. We talked about the core principles that make the use of deadly force justified, but each one of those has to be reasonably considered both subjectively and objectively. We’ll get to that next time. Until then, be smart, stay safe, and take care.
