Transcript of Podcast
Shawn Vincent:
In our last chapter, our last lesson, our last podcast, we talked about the imminence of a threat— the severity of the threat that they pose. And Steve, you helped us break that down into tactical terms about the ability, the opportunity, and the intent of the attacker. But all those things require a assessment, right? It requires some discretion, and that means that there’s going to be the defender’s subjective, from their personal point of view, assessment of what that threat is. And then if there’s any police investigation, if there’s someone who’s hurt or killed, as is often the case in a firearm, self-defense case, then there’s going to be a very strong objective scrutiny of the defender’s assessment of those things. And there’s frankly a lot of room for interpretation. Sometimes that’s interpretation is made by the homicide detective. Sometimes it’s made by the prosecutor. Ultimately, sometimes these things are made by a jury of your peers, right Don?
And it goes back to, and here’s why I like this lesson, because it’s not only: “Was the defender’s assessment of the attacker’s ability reasonable, it’s not only was the defender’s assessment of the attacker’s intent reasonable?” It’s not only: “Was the defender’s assessment of the attacker’s opportunity reasonable?” It gets into this thing that we come over and over again. We deal with experts from law enforcement and legal about the totality of the circumstances. All these things together, we’re going to look at the defender and ask, “Did they act reasonably?” And did the things they used to found their belief on the imminence and the severity—the ability, the opportunity intent—were they based on reasonable things? Which creates a paradox where they could be wrong about their assessment, but if they were reasonable in why they were wrong, then that changes how they’re judged. So Don, there’s a whole lot there. And now we’re getting to the real legal side of this, and I’d love for you to comment on anything I said there or unpack any of that, or rephrase it for our audience.
Don West:
Well, sometimes this notion of reasonable belief is also characterized as reasonable fear. I like reasonable belief better, but a lot of people think about: “I was scared of this guy. I was scared he was going to kill me. I was scared he was going to injure me or kill me, and as a result of that, I had to use my gun to defend myself.” Well, a prosecutor could exploit that by illustrating to the jury, if they ultimately accepted the argument that he wasn’t reasonably fearful, that ge was acting out of panic, sheer panic—that it wasn’t grounded in articulable reasons, whereby the conclusion was reasonable. I mean, it sounds kind of circular, but there’s a way that your level of fear can be analyzed and assessed by others even if you think that you had good reason to be fearful of this person. A prosecutor will often look for a way to exploit the mindset saying the threat wasn’t such that it warranted the use of deadly force. In fact, he wasn’t acting in self-defense, he was acting out of anger.
So if your emotions take over, then that’s the way that your claim can be defeated. So you go into this thing explaining that your conduct was because of these events and these circumstances and that it was reasonable to you. You acted reasonably based upon your assessment of the situation, your background and your training and such. So therefore, you had this subjective belief that you were acting consistently with the law based upon your assessment of the threat level, opportunity, et cetera. And then of course, the jury gets to second guess you—not to decide things differently, but they sort of assess whether or not you acted objectively reasonable under the circumstances. So they still have to look at it as if they were standing in your shoes. So they get to know if you have training, they get to know if you have a history with this person. They may even get to know things about the person that you knew or even didn’t know, but they’re going to, in a sense, put themselves in your situation and then decide whether what you did was objectively reasonable. Not that they have to agree with you a hundred percent or say I would’ve done it exactly the same way. They just have to conclude essentially that you weren’t unreasonable in your assessment and your approach and your ultimate decision to use deadly force.
Shawn Vincent:
Well, it’s a lot to weigh, and I think this is what … when we go out and go to conferences and talk to folks who attend, Don and I talk about the law of self-defense with people who are at a tactical conference. Their real concern is that not that they’re going to meet a deadly force with force, but that they’re going to be judged by people who don’t see it that way or they don’t know all the information that they knew. Another way of saying that is you’re really putting your life in the hands of strangers who you don’t know how they’re going to assess your actions, and they don’t all feel the same way about self-defense or the 2nd Amendment or firearms that you do. I help pick juries for these things. I know there’s a lot of different types of people, and they’re not the 12 people that … they don’t all belong to CCW Safe. We’ll say that much.
Don West:
Well, I think the way this thing gets bifurcated is pretty clear in certain state statutes and the approach that’s taken whether or not you’re charged with first degree murder or the jury considers a lesser degree of murder because of their assessment of your reasonableness. For example, a jury could conclude, yes, you had reason to be fearful. Yes, you reasonably believed that the attack was imminent, but you unreasonably believed that it was a threat that would likely result in great bodily harm or death. So check all the boxes, except they think that your use of deadly force in the scenario where you clearly were threatened was unreasonable because you used more force than was necessary. They can be with you 95%, but if they don’t go with you the whole way, and they conclude, in fact, that notwithstanding, you were in a self-defense situation, what you did was ultimately unreasonable, they could convict you, after acknowledging all of that, with a very serious crime.
Shawn Vincent:
You have to be reasonable about everything.
Don West:
Right.
Shawn Vincent:
I want to underscore what you said about the distinction between a reasonable belief and a reasonable fear because, let’s just say it’s four o’clock in the morning and there’s somebody hammering on your front door, making the wall shake, and you’ve just been startled awake. It’d be reasonable that you’d be afraid in that circumstance, and it’d be reasonable that you’d be afraid that there’s someone very violent on the other side of that door. That reasonable fear does not translate to a reasonable belief that you are in imminent … meaning right now. Right now, unless you don’t have time to react and do anything else but protect yourself that you’re going to be ravaged and killed or beaten to a pulp, right? I think what some of the armed defenders that we’ve studied in these high profile cases have turned out badly is no one’s going to say that they weren’t reasonably afraid—just that their belief that the threat was imminent and deadly or life altering at that moment wasn’t reasonable. So I think when I discuss this throughout the 36 Lessons, except for to make this point, I’m going to use the term reasonable belief because I think if armed defenders think about that and adopt that instead of the idea of reasonable fear, it’s going to keep them out of trouble when that emotional response that you talked about hits them in a frightening situation.
Don West:
Yeah, I think that makes good sense, especially in the scenario that you described. I would be very afraid if somebody were pounding on my door and screaming and trying desperately to get in or to do something, and you wouldn’t know what they were doing if you’re awakened the middle of the night with that kind of commotion. And who wouldn’t be fearful and you would be reasonably fearful that something bad was going to happen? But you can’t reasonably believe in that moment that the threat is imminent because imminent means right now with the ability, the opportunity, and the intent. Well, you’ve got a door between you and the other person, and if it’s a solid door and they’re not able to get through it, and they’re just pounding on it, then the risk to your life isn’t imminent in the legal sense. They break down the door, they come in—of course, that changes everything dramatically. But the cases that we see that are so much trouble for the homeowner who’s scared beyond belief at that point, not knowing what’s going on, makes the legally catastrophic decision to shoot through the door. And over and over and over again: that just never works out.
Shawn Vincent:
It happens enough that that’s going to be one of the 36 Lessons: don’t shoot through a door. And then another one of our lessons is don’t open the door to trouble. And sometimes you’ll have people face that scenario and open the door and can’t resist the … I think when we’re terrified, we want to eliminate uncertainty. And they’ll do that by going to explore to see what the threat is to end it, to end the fear one way or the other, but they end up just opening the door to the threat, which doesn’t look great.
Don West:
Well, as Steve says, if you find that hard corner in the house, the threat is no longer imminent if they’re pounding on the door, if you’re in some safe spot with the ability to defend yourself, if in fact they’re able to make entry.
Shawn Vincent:
And Steve, that goes back to what we talked about when we’re judging imminence and severity of a threat. The ability, the opportunity and intent of a potential attacker is creating distance, right?
Steve Moses:
Yes. And you know what? Don said that so well, I was going to say … I was going to jump in, but he said it better than I can … us that, okay, “What can I do to manage my fear?” Well, can I manage my fear by going someplace else or getting behind a bit of hardcover, hardcover being something that’ll stop incoming bullets or getting into that hard corner in a bedroom in which the other person is going to have to come in there and at least project some part of their body in order to see you. So a lot of people could probably deal with that situation and certainly manage their fear better by saying, “Well, I don’t have to necessarily be here,” and going to a more defensible location.
Shawn Vincent:
Yeah, that’s interesting because I’m much less immediately fearful if I’m in another room, where I could hear if that front door gets broken, than if I’m standing right behind that front door. And then that kind of brings up giving myself that space and that concealment that brings the immediacy and the threat level way down. And I think part of that, Steve, is it could be out on the street, and we talked in our last podcast, and we’ll talk again about going off in a different direction or using verbal cues to mitigate or to discern the intent of the person. And those things, they don’t just help clarify what we’re dealing with. They’re also things that we can do to bring down our own anxiety, our own nervousness about the situation or confirm the belief that we have that we’re facing something dangerous, right?
Steve Moses:
Yes, sir. It’s no longer a paralysis by analysis. It’s basically, “I am taking an action because I don’t know if I need to shoot this guy to the point,” to where like: “Oh, wow, I’m glad I didn’t shoot that guy!” to, “Oh yeah, I need to shoot this guy.” So you’ve just proved, I would think to most any reasonable juror that you had a reasonable belief that your life was in jeopardy in some form or fashion.
Shawn Vincent:
I think I might draw on some of the cases that we’ve explored because what they illustrate, there are circumstances where a defender can make an argument that all those boxes about the ability, the intent, and the opportunity were checked, but one of ’em just doesn’t really pass muster. Right. And let’s start with the Daniel Perry case. And so Daniel Perry was, this was during the marches and the protests after in the summer of 2020, I think after the fellow in Minneapolis …
Don West:
The George Floyd. George Floyd.
Shawn Vincent:
George Floyd, yeah. Daniel Perry is a rideshare driver. He’s in Austin where there has been nights of protests. He drives his car, whether he did it intentionally or inadvertently, he ends up in surrounded by demonstrators. Texas is an open carry state. Garrett Foster, he is actually dressed in some tactical gear—he is carrying AK-47-style rifle—comes up to approach this car that Daniel Perry is in that is being surrounded by marchers who are angry that he’s driven into their march, right? Daniel Perry rolls his window down, but then he says that he thought that Garrett Foster was raising his rifle or about to raise his rifle, and he pulls his firearm and he shoots him. And so here’s why I bring this up, because a man dressed in tactical gear carrying a rifle, Steve, I think it’d be foolish to assume it’s not armed. And you described to us how you even showed us a video one time of how quickly you can go from the rifle pointed down to business mode.
And so he was by those accounts, just instances away from being shot by this rifle. The big question is, was it reasonable to think, in the context he was in, that Garrett Foster had the intent to cause him that harm? And it’s a really tough call. It was controversial when it happened. It was controversial when he wasn’t arrested for it. It was controversial a year later when a new prosecutor was elected and did arrest him for it. And it was so controversial that the governor of Texas decided right after he was convicted at trial that he was going to commute his sentence as soon as he had the opportunity. I think I bring this case up to illustrate how reasonable people can disagree on what’s reasonable, and this is the burden. This is the dilemma that armed defenders have when they’re assessing the situations.
Steve Moses:
Well, I tell you what, it just strikes me, and it’s possible that Perry did do this, but simply in this particular case, he felt like he couldn’t go anywhere safely. I think he was fearful of driving off and striking someone in the crowd where had he just simply verbalized with a loud, sharp, get back, there’s a possibility that it would’ve resolved the situation in terms of, “Hey, did that person that had the AK-47 clone, was their intent bad?” Or was it perhaps something more benign? And there’s a very good possibility that that person had no bad intent. He just pretty much thought that he could do that and nothing bad would come of it, which is just one of those other reasons that anytime you have a long gut in your hands out in the public, there’s a pretty good chance that somebody’s going to assume that you’re somebody that needs to get shot right now.
And we have a recent shooting, I believe that took place. Oh golly, it was in Colorado. I can’t recall. I want to say Aurora Springs, but that’s not correct … but anyway, in which there was an active shooter at Downtown Square. He shot a couple of people. He was shot and incapacitated by an armed defender who then picked up the rifle only to be shot by a responding law enforcement officer. So I know I kind of got off in the weeds there, but my point being that even then, if Perry was prepared to deal with that, had his gun in his hand, and had he verbalized that to get back or don’t move or something to that effect, we may not be talking about this today,
Shawn Vincent:
Right? Because if Garrett Foster didn’t have the intent to actually cause him harm, he would’ve suddenly … he may have forgotten, because he marched several times carrying that rifle. He may have forgotten that he had it and forgot what it would look like to somebody who didn’t know who he was or know that his intentions were kind. And being shook out of that with a verbal cue might’ve helped things out.
Don West:
I think this is a really interesting focal point on what we talked about a little bit ago, subjective versus objective reasonableness. Because this case is multilayered, it’s really pretty complicated because you’ve got Garrett Foster clearly displaying a deadly weapon, maybe not doing so in a menacing or aggressive way, but nonetheless, he’s got it right there. You’ve got Daniel Perry in the middle of all of this who’s clearly armed and trying to make sense of it, but you have it really complicated because now the jury has to get inside the head of the defender. They have to decide what were they thinking and then decide “Was what they were thinking reasonable for them?” Did they actually believe it or are they just saying that? And then after they sort all of that out, they have to figure out is that objectively reasonable? Would another person in a similar situation with the same training and the same background and all knowing the same information, act that same way? And this case was challenging on all of those points, and most of that I think came to be revealed. It wasn’t immediately known. It was after the investigation when Daniel Perry’s social media posts and statements were made public that questioned, I think the subjective reasonableness of: What did he have in mind? Why was he there to start with? Did he have an interest in getting into a confrontation? I think he went so far as to say, I may have to shoot some protesters at some point …
Shawn Vincent:
… if they’re blocking my way to work, or something like that. Yeah,
Don West:
Yeah. He really muddied all of that up when it looked like people wanted to give him the benefit of the doubt to start with.
Shawn Vincent:
Well, what I love about what you’re touching on there, too, and there’s also some controversy like, “Well, why wasn’t he paying attention that he just drove into this crowd and they claimed that he intentionally turned left on a red light to go to where the crowd was?” And he says he didn’t see the light and wasn’t paying attention. He made some behaviors that on their own, separate from the decision to pull the trigger that seemed unreasonable. And I mentioned this because when a jury’s going to be asked, “Was your decision to pull the trigger reasonable?”, they’re going to look at other decisions that you made that are part of your testimony and part of the evidence and say, “Were those decisions reasonable too?” If you have somebody who’s acting generally unreasonable, there’s a good chance that a jury might sway towards your use of force as unreasonable. And if you’re looking at somebody who made smart, reasonable decisions along the way, then that’s going to influence how they look at your ultimate decision to use deadly force as well. Do you agree with that, Don?
Don West:
Yeah, I think so. We might call that the totality of the circumstances.
Shawn Vincent:
It comes up. I’ve heard that before over and over again. Well, a case I’m consulting on where both parties acted unreasonably—they made some unreasonable decisions, but the attacker’s decisions were way more unreasonable than the defender’s decisions. And I honestly believe that sometimes when it comes down to a jury, that’s going to affect how they assess it. What may have been considered unreasonable in case A isn’t nearly as unreasonable in case B when you look at the behavior of the attacker that you’re looking at. And I say that just to reinforce that when we talk about the reasonable belief, that this idea of reasonability or reasonableness … reasonability is not a word, is it? Reasonableness, permeates the whole all your actions and the totality of the circumstances.
Don West:
That’s the bottom line, isn’t it? You can always argue, if you’re the prosecutor, ask the jury to convict claiming that one or more of these decisions were simply unreasonable. No reasonable person acts like that. And the more unreasonable decisions that you’ve made along the way, the stronger that argument is that your final decision was also unreasonable. Keep in mind, in all 50 states, the prosecutor still has to disprove self-defense, but all they really have to disprove is one element of self-defense. They can check all the boxes in your favor except for that one. And if you give the prosecutor the opportunity to make a compelling argument that your decision making was unreasonable, your decision to pull the trigger was not motivated because the genuine reasonable belief that you were facing that imminent threat of great bodily harm or death, but was motivated by anger, fear that you had looking for a chance, you hear that arguing a lot: He went there looking for trouble not to avoid it.
Shawn Vincent:
Well, we’ve seen prosecutors do an end run around stand your ground in, stand-your-ground states. I’m thinking about the Gyrell Lee case because the prosecutor has argued that a reasonable person would have tried to run from that situation, and this person didn’t—and didn’t draw an objection apparently from the defense. But in this case, Gyrell Lee … they’d had a verbal, escalating verbal tuff with this guy in this neighborhood named Quentin Epps, who was a, quote, “known troublemaker” according to the paper that covered it. And then he came back late in the night on this New Year’s Eve, and Gyrell Lee and his cousin go down to confront this guy. Gyrelll brings his pistol “just in case.” His cousin starts a fight with Epps. Epps shoots his cousin, brings the gun on Gyrell Lee, and Lee shoots this guy, right? So the Cato Institute wrote a paper in defense of Gyrell Lee, and what they thought was very clear self-defense. But I think what the jury had to confront was: “Was it reasonable for Gyrell Lee to arm himself and go to that confrontation with Epps knowing that obviously it might go violent?” Otherwise, why would he have gotten his gun “just in case”?
And then when things did get violent, Was it reasonable for him to stick around and continue the fight when allegedly other people were scattering at the site of the firearm? And that was a verdict that went against the defender, but it went late at night after, I think, an Allen charge had been declared. The jury had been deadlocked on things beforehand, and some of the jurors were tearful when they delivered their conviction on that case.
Again, another one where there’s a really difficult close call where even the people on the jury had differences of opinion, but they still had to come to a unanimous decision or else mistry the case. But Gyrell Lee, to add to that, he ran from the scene, hid his gun, and didn’t report the shooting. Not a reasonable thing to do. And all those things—I think, when it’s a close call—they’re going to tip the scales one way or the other potentially.
Don West:
Yeah, like I said, the prosecutor’s trying to dig inside the brain and figure out what happened and why did it happen. And as Steve mentioned earlier, you have to look to external things to decide what was going on and what the thinking was. And it’s circumstantial evidence that’s typically used to prove intent unless there is a direct statement. And that’s pretty rare other than the exculpatory statement made by the accused. We all know that self-defense is an affirmative defense that you have to stake out, and there has to be some evidence of self-defense. The prosecutor then has to rebut and essentially disprove self-defense. But when you couple a weaker case with those kinds of circumstances that you described with the kinds of things that are characterized as consciousness of guilt, the prosecutor’s going to argue that’s the window into the thinking. A innocent person doesn’t run away, an innocent person doesn’t hide evidence or tamper with evidence, et cetera, et cetera, et cetera.
Shawn Vincent:
Yeah, and that all speaks to reasonableness. I want to turn this whole conversation on its head for a second, and I’m going to paint a scenario for you that you’ll recognize once I get into it. You come home from a long double shift, and you come to your front door, and it’s unlocked surprisingly, and you hear a noise inside, and you go inside and you find that there’s an intruder in your living room, and they get up and they come at you and—oh, by the way, you’re a uniformed police officer—and you yelled, “Stay back! Stop!” And they keep coming at you, and you decide that you’ve got an intruder in your home, and they mean it to you harm, and you shoot them twice and kill them, only to discover, once you get a better look, and your eyes have adjusted to the darkness, that you’ve accidentally gone into the house of your upstairs neighbor in the apartment complex that you live.
I’m describing the Amber Guyger case. She went at a wrong apartment, thought she was justifiably shooting an intruder that posed a threat, and now she has faced trial for it. We know that she was convicted, but we also know that the same jury that convicted her gave her a sentence, I believe it was 10 years, that was on the very low end of the range that she could have been sentenced to for murdering her upstairs neighbor—partially because, I think, in the end, they found that she was unreasonable in that she went into the apartment believing that she was going to an encounter intruder instead of using her police radio to call for backup or using, as Steve would say, some verbal commands or cues to help disambiguate that situation. But if it were a circumstance where a homeowner goes home and is unexpectedly met by somebody who doesn’t belong in their house and they tell ’em to stay back and they keep coming forward to them, that’s a scenario where most homeowners are going to get the benefit of the doubt. In this case, it was that it was so extraordinary that she was the intruder, not him, but I think that jury believed that she reasonably believed at the moment she pulled the trigger that she was in her own apartment. And even though they didn’t excuse her for the homicide because of that, the leniency of their sentence reflected what they thought she subjectively believed. Do you think I’m right on that?
Don West:
Well, you mentioned before how sort of the compilation or the layering of unreasonable decisions or bad decisions along the way can somehow taint the whole thing.
Shawn Vincent:
Yes.
Don West:
While I think that’s right in your assessment of what she was thinking at the moment that she pulled the trigger, I think the jury thought that she was unreasonable in concluding that. There were too many indicators that should have told her she was in the wrong place. And even if it didn’t tell her she was in the wrong apartment, it should have told her not to go in. I mean, she’s a trained police officer. The door is open and it’s not supposed to be, she hears something that would suggest an intruder. She knows what to do in that situation. She can stay outside, be armed all day long, call for backup, figure out what to do next as opposed to making that series of, what I believe the jury ultimately concluded, were unreasonable decisions to go in and confront it.
I mean, I know this is going to sound a bit weird, but it’s almost like going to the fight in a situation when you didn’t need to have that confrontation. You cannot go shoot somebody because they might be stealing something as much as you might want to. She knew there should not be any other person in there that would be in danger if it was her apartment. So there was no compelling need to take that next step.
Shawn Vincent:
And I guess what I’m arguing is: I think that her decision to use deadly force at the moment she did, based on what she thought, was actually more reasonable than her decision to go into the apartment at all, even if she did believe it was her own apartment. That was the more unreasonable. Going into the apartment to face an unknown threat was more unreasonable than maybe the decision to use force when she met it.
Don West:
Well, you mentioned that, Shawn, and one thing that I’ve heard others talk about that really caught my ear during her testimony, because I watched a lot of that case when she was on the stand explaining her conduct and her thinking and the sequence of events and stuff. The prosecutor asked her if she intended to kill …. I’m sorry that name has dropped out of my head, the young man that she shot and killed … if she intended to kill him …
Shawn Vincent:
Botham Jean.
Don West:
Yes. And she said, “Yes.” I don’t know why on earth she would say that thinking that was a good reflection of her thinking. I don’t believe that. That’s not what her training would be. Right, Steve? That’s not the training that you get. It’s to neutralize the threat. It may be it represents the fear that everyone has who’s on a witness stand, the unfamiliar territory, even for a seasoned police officer being on the stand and being cross-examined as a terrifying experience. Maybe she just flubbed up. But that …
Shawn Vincent:
I feel like the question she was answering is, “Did you mean to shoot him?” That yes, it was an intentional act, and she understood that could result in death, but that’s not what he asked, and that’s not what she answered.
Don West:
Yeah. And I think that soured some of the image that she’d had so far.
Shawn Vincent:
And maybe here’s the heart of what I’m talking about here. Even in some of the most justified cases that I’ve seen—of a home intruder, assaulting mother, protecting her children—that there were moments where that defender had the opportunity to make mistakes or to misinterpret the circumstances. And you don’t know, in the dynamic fog of war, if you’re misinterpreting something, if you’re seeing something wrong, if what you think is a gun is actually the cell phone, if it’s not a gun, it’s a replica, and it should be obvious because you should see the orange tip, or the person on either side of the door is drunk and psychotic, but not meaning to break into your house and attack you, right? All these things that we’ve seen where there are mistakes made in interpreting the facts.
I think you can assume as an armed defender, you’re going to misinterpret something in a self-defense encounter. You’re not going to know what it is until later. And if all the decisions you’re making are reasonable and you messed up on that one, your odds are better that you’re going to be forgiven for that mistake when everything else seemed to be reasonable, right? But if you’re like: “I’m going to stand on my ground even though I have a chance to retreat.” Or, “I’m going to open that door even though I know I’m safe right now for the time being behind the door.” Or, “I’m going to go downtown when I know there’s a protest.” Going armed. Or all these things that we see people do. If you make reasonable decisions all the way along the lines, then: One, you’re more likely to avoid the whole confrontation to begin with; and Two, if it does come to that, and you make the choice to use deadly force, and you messed up on something, if you messed up believably and reasonably for it, we’ve seen over and over again, people get some consideration for that.
Don West:
I think that’s well said. You don’t have to be perfect. You can make some wrong decisions. You can reach some wrong conclusions. You can be mistaken about important things, very important things. But if you don’t appear to be unreasonable in your decision making, in your process and your motivations and such, I believe that the law is designed to forgive you for that—if you are otherwise exercising good judgment within the bounds of the law.
Shawn Vincent:
And that forgiveness can come from first responders. It can come from the homicide detective who sent that night. It can come from the prosecutor who sees how the homicide detectives present the case, right? It can come from a judge if there’s a self-defense immunity hearing, and it can come from jurors down the line. There’s cascades of people who are going to exercise their judgment on your case, and each one of those places is a chance for your reasonableness to prevail. That’s how many other people’s objective opinions are going to be put on top of you.
Don West:
We don’t mention this specifically enough: It is an awesome responsibility that you have taken on when you decide to own and carry a firearm, and people expect you to act accordingly. They don’t necessarily expect you to be perfect with it, and they recognize that you can make some decisions and the law will still favor you if you are otherwise acting responsibly and carefully and, ultimately, this overused, well-worn, worn word today: reasonable. If you are reasonable.
Shawn Vincent:
I’m going to turn what I said upside down again, where I’m going to go to a case that a lot of our listeners would be familiar with—maybe watched a little bit of: Kyle Rittenhouse. So Kyle Rittenhouse made the unreasonable choice to leave a place of safety, go to another city in another state, to be in an area that was already having violent protests, people setting dumpsters on fire, businesses on fire. He was there, I believe, actually to help. He could render first aid. Earlier in that day, he was helping scrub vandalism off of a local high school. And his intention, he stated—and I believe was true—was to protect some businesses there that were in threat of being vandalized or burned. And somewhere along the way, someone gave him a rifle to carry. And then when things got out of hand, he was attacked. I think three or four very clear times.
And his attorneys put together and made public a compilation of video that showed almost the continuity, entire interaction. And we broke it down sort of moment by moment. And remarkably, he behaves very reasonably when facing each one of those threats, and where a lot of other defenders that we have seen would’ve shot early or shot at someone approaching. He made very rational choices and was always trying to flee the harm that he thought he was facing. And only when he was knocked down to the ground, and cornered, and rendered immobile that he resorted to deadly force. I’m generalizing a lot here, but that’s the gist of what we found. So there’s a guy who made one overarching universal bit of bad judgment and an unreasonable decision, but then moment by moment made very reasonable choices. And I think that, plus he testified and spoke to his thoughts really well during trial, is what earned him an acquittal in that case.
Steve Moses:
Well, he was very much reading the room. This was an important thing, and this is something that I don’t believe Amber did sometimes. And I’ve had students this way that say, if someone is breaking into their house or they have broken into my house, I’m going to shoot him. And I go: “So anytime that happens, is that what you’re going to do?” And they go, “Yes.” Well, “What if they were drunk and thought that your house was someone else’s house?” “Well, I guess so they made a mistake.” “Well, what if it was somebody that had perhaps Alzheimer’s and they had lived in this house and they left the facility and they were in it? Would you do then?” “Well, I don’t know.”
And then the last one is, and this happened to a good friend of mine. He went to the police academy with me, and Lee was in his house one night when he heard a window open. So Lee picked up a Remington 870 pump, 12 gauge shotgun, went into the living room—there was a shadow. Lee yelled at them to get down. When they got down, he turned the light on, and it was a 14-year-old girl whose gangbanger boyfriend persuaded her to go through that window and then come around and let him in. And people like going, “Ikay, well, maybe not then.”
The point being is you really don’t know what scenario is going to unfold. You don’t know what’s going to happen. You need to be in a position in which you can read the room and then respond to that. And if you need to use the lethal force, use lethal force. If you can delay using lethal force or, in many instances just tell ’em to leave, you can do all that. But I think if you made the decision in advance that if A does something, you’re going to respond with B as opposed to a, “If they do something, I’m going to take a look at the situation and what are my options, and then make a decision.” And I think in Kyle’s case, I agree that first decision was a critical error, but just like you said, he was doing his best to escape from there, as opposed to stand his ground and just start shooting people. So I agree with you.
Don West:
What Kyle Rittenhouse did that impressed me along the way was each incident where he was attacked by an individual was treated as a discreet and separate event from the others. He had that interaction with the guy that he shot that sort of started it, and then the crowd started chasing him. As Steve said, he didn’t stand there and start shooting everybody. He fled. He tried to get away and he did. He was running down the street and fell. There was a guy that tried to hit him, what? With a skateboard, I think. And another guy, the guy that he wound up shooting in the arm had a firearm, but he never just stood there and started shooting anybody that got close to him. He really responded specifically to an articulable threat by an individual each time. That was very impressive as to his maturity and his view of the rules in that situation. It shocking for his age. What was he, 18? 18 or 19?
Shawn Vincent:
I think he was 17 when it happened.
Don West:
Oh, is that right? Yeah.
Shawn Vincent:
Yeah. He was really young. Maybe. Yeah, there’s me a mansplaining to other men. I pretty sure, but I said it so authoritatively that I’ll have to fact check it. But I want to respond to a couple of things that Steve said and about “reading the room” and having these hard fixed rules. I’ve heard people say that if A happens, I’m going to do B. And I think that’s where we see relatively good people get into bad circumstances because they didn’t adapt to the situation, and that meant that they found the one instance or the set of instances where that behavior was unreasonable. And now they have to try to explain this to a jury essentially that, “Yeah, well, I had a rule that I believed if someone came into my house uninvited that they were an intruder. And that’s what I thought happened. So I shot ’em.”
It just doesn’t play well. And you talked, in our last podcast, we talked about imminence and severity, Don, about the Dennis Tuller’s 21-foot principle. Right? And if somebody has in their mind, and Steve, you stressed this too, that, “Oh, if I think they’re a threat, and they’re inside 21 feet, well then I can shoot ’em.” That’s some sort of … that’s why we don’t call it a “rule.” It’s a principle. That’s why I think in self-defense, besides the law, there are no hard and fast rules. Because if you rely on rules, Steve, then you don’t read the room. And, Don, isn’t reading the room another way of talking about the totality of the circumstances?
You have to look around, you see what’s happening now, and what’s happening now can be different and what’s happening, one second ago. Our listeners will know that we’ve explored the Michael Drejka case, and he pulled out his firearm after being shoved to the ground violently. And Markeis McGlockton, the attacker, stepped back and changed his posture, and clearly signaled his intent was different, and he was removing the immediate opportunity to attack. But Drejka didn’t change. He didn’t adapt to that circumstance. He cited the “21-foot rule” to police in his interrogation. And I think that’s a perfect example, Steve, of someone who had a rule in their head didn’t adapt it to the circumstances. And in the end, jurors said he had an opportunity not to shoot the guy and he didn’t take it. Unreasonable. Guilty of manslaughter.
