On a February evening in 2020, an anonymous licensed concealed carrier (we’ll call him The Defender) left the King of Prussia LA Fitness and walked towards his car in the darkened parking lot. He realized someone was following him—a man named Alan Womack. Earlier in the evening, Womack and The Defender had an argument during a basketball game. When Womack threatened violence, The Defender quit the game and decided to leave, but by the time he changed and gathered his belongings from the locker room, Womack had gone outside to wait for him in the parking lot.
As The Defender walked to his car, Womack followed, making threats and shouting obscenities. In the final moments, as he closed on The Defender, Womack drew a Taurus pistol and racked the slide. In response, The Defender pulled his Glock 9mm pistol from his gym bag and shot Womack once in the chest. Womack died before paramedics arrived.
After a three-and-a-half-week investigation, Montgomery County District Attorney Kevin Steele publicly exonerated The Defender—without revealing his name out of respect for his innocence. Steele told reporters:
There is no doubt about who shot and killed Womack, so the legal issue to be analyzed is whether this was a justifiable killing. 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, following him through the parking lot, threatening him again, pulling out the gun, and racking a bullet into the chamber while approaching the other man.
Barring extenuating circumstances, if someone threatens to kill you, chases you down, and draws a firearm on you, it’s fair to say that you would have reason to believe that they have the ability, opportunity, and intent to cause you great bodily harm or death. Legally, they would present an unambiguously imminent and serious threat. It’s easy to see why the district attorney declined to file charges for the shooting of Alan Womack.
However, we can just as easily imagine how the encounter could have unfolded differently. Although The Defender had good reason to fear Womack in the moments before the shooting, until Womack produced the pistol, the attacker did not have the immediate ability to cause great bodily harm or death—and The Defender couldn’t have known the assailant was armed. If The Defender had fired before the attacker drew his gun, the district attorney may have decided the shooter fired too soon. Once Womack fell to the ground, incapacitated, he no longer presented a threat. If The Defender had gotten carried away and fired more shots than necessary, the district attorney may have concluded that The Defender, even if justified at first, ultimately fired too late. The Defender may still have been able to stake a successful self-defense claim, but it would have been more controversial, and it’s unlikely the district attorney would have been quite as eager to exonerate him.
During his time with the Oklahoma City Police Department, retired homicide detective Gary Eastridge investigated more than a dozen cases where the shooters claimed self-defense. Some of the shooters shot too soon, and some shot too late. Gary describes a “window of justification” that opens when all the elements of ability, opportunity, and intent align—but he warns that, as circumstances change, the window of justification can shut as quickly as it opened. Criminal defense attorney Don West quotes a sentiment popularized by attorney Andrew Branca when he says, “The window of justification is like Goldilocks and the Three Bears: you can’t be too early or too late. You have to get it just right.”
The Defender in the Womack shooting recognized the Goldilocks moment and got it just right, but in many of the other cases we explore in the 36 Lessons, the defenders miscalculate the timing of the window of justification, resulting in catastrophic mistakes. Don West says, “Understanding the legal boundaries and recognizing the pivot points is key to navigating a dynamic self-defense scenario and staying within the parameters of reasonableness.”
For Lesson 6, we’ll explore two cases where the defender shot too soon—before the window of justification opened. We’ll travel to Rochester, Minnesota, where a bizarre traffic accident escalated into a threatening confrontation that resulted in Alexander Weiss fatally shooting Muhammed Rahim. We’ll probe deeper into the Michael Dunn case, where an argument over loud music in a Jacksonville, Florida, convenience store parking lot ended with a burst of gunfire that killed seventeen-year-old Jordan Davis. But first, we’ll go to Kenosha, Wisconsin, to dissect how Kyle Rittenhouse successfully operated within the window of justification when he navigated four distinct self-defense encounters that unfolded during a violent riot.
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Following the police shooting of Jacob Blake, protests devolved into riots in Kenosha, Wisconsin, where looters pillaged shops and arsonists set local businesses ablaze. On August 25, 2020, Rittenhouse traveled from his hometown of Antioch, Illinois, to assist in local recovery efforts and, as a lifeguard trained in first-aid, do his best to help anyone injured in the riots. During the day, Rittenhouse volunteered to scrub graffiti from Luther Center High School. As evening approached, he agreed to guard a local business that had suffered damage the night before. Someone loaned Rittenhouse a Smith & Wesson .223 rifle for personal protection.
“People are getting injured,” Rittenhouse told reporter Richard McGinnis. “And our job is to protect this business. Part of my job is also to help people. If there’s somebody hurt, I’m running into harm’s way. That’s why I have my rifle, because I need to protect myself, obviously, but I also have my med kit.” The press called people such as Rittenhouse “vigilantes.” Rittenhouse preferred the term “guards.”
After sunset, things got out of hand. A man named Joseph Rosenbaum, who witnesses say had just ignited a dumpster fire, targeted Rittenhouse and started chasing him. Rittenhouse fled, but he soon found himself cornered between a vehicle and an agitated mob of rioters shouting threats of violence. Rosenbaum taunted and threatened Rittenhouse, and when he lunged forward to grab Rittenhouse’s rifle, the defender fired four shots in quick succession. One proved fatal.
Moments later, the mob moved towards Rittenhouse, and the shooter fled, running towards a known police presence a few blocks away. Angry elements of the crowd pursued him. A bystander’s video captured Rittenhouse stumbling to the ground, allowing a young man named Anthony Huber to catch up. While Rittenhouse struggled to a seated position, Huber struck Rittenhouse with a skateboard he carried, and then he tried to rip the rifle from Rittenhouse’s hands. Rittenhouse fired a single fatal shot that ended the encounter.
Next, Gaige Grosskreutz approached Rittenhouse; however, instead of being armed with a skateboard, Grosskreutz carried a pistol. At first, Grosskreutz appeared to put his hands up in surrender, but he quickly changed posture, lunged forward, and aimed his pistol at Rittenhouse. The defender fired a single shot that struck the assailant in the bicep, which, according to the criminal complaint against Rittenhouse, caused Grosskreutz to run “away from the defendant screaming for a medic.”
Once Grosskreutz retreated, Rittenhouse turned his rifle towards another approaching protester who immediately raised his hands and disengaged. Rittenhouse held his fire, got to his feet, and fled to safety. Don West says, “The fact that Rittenhouse didn’t fire on him demonstrated real restraint, and it helped his lawyers make the argument that during the other occasions when he did fire, he acted reasonably.” When we look back at each of the shootings, we discover Rittenhouse demonstrated similar restraint during each previous encounter.
Each person Rittenhouse shot took a series of aggressive actions that gave Rittenhouse reason to believe they meant him serious harm. Grosskreutz opened the window of justification when he lunged toward Rittenhouse and pointed his pistol. Huber opened the window by attacking Rittenhouse with a skateboard and trying to wrestle his rifle away. Rosenbaum opened the window by issuing verbal threats, pursuing Rittenhouse, backing him into a corner, and trying to take his rifle; it’s a cascade of events that echoes District Attorney Kevin Steele’s account of the Womack shooting. At trial, Rittenhouse told jurors that Rosenbaum, “could have ran away instead of trying to take my gun from me, but he kept chasing me.”
It seems clear, through Rittenhouse’s testimony and his actions, that he didn’t set out to kill anyone the night of August 25, 2020. Although he exercised questionable judgment by voluntarily traveling across state lines to inject himself into a predictably chaotic situation, once the trouble started, Rittenhouse tried to flee the danger, and he fired his rifle only when he had run out of other options. As each of these encounters escalated, Rittenhouse had reason to fear his attackers. Still, the defender didn’t fire his rifle until that fear manifested as a reasonable belief that he faced the imminent threat of great bodily harm or death—until the attacker forced open the window of justification.
Rittenhouse’s jury deliberated for 26 hours over the course of four days before they unanimously agreed to acquit Rittenhouse on all charges.
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Two and a half years before the Rittenhouse shootings, Alexander Weiss confronted two unarmed aggressors after a vehicle collision on an icy January morning in Rochester, Minnesota. While on his way to referee a basketball tournament, Weiss witnessed a silver Chevy Cavalier skid sideways through an intersection and smash into the curb. Intent on offering aid, Weiss pulled over in front of the Cavalier, but before he could exit the vehicle, the driver behind him revved his engine and smashed “pretty forcefully” into Weiss’s Subaru.
When Weiss stepped out of his vehicle to deal with the aftermath of the collision, a passenger emerged from the silver Cavalier: 18-year-old Noah Dukart. Weiss testified that Dukart yelled at him, and “had his shoulders up” and “fists balled.” At trial, Weiss told jurors that Dukart accused him of causing the crash. When Weiss announced he would call the police, Dukart threatened to kill him. Weiss went back to his still-running car, retrieved his cell phone, took his pistol from the glove compartment, and slid it into his jacket pocket.
When Weiss returned to confront Dukart, the driver of the Cavalier, Muhammed Rahim, joined the confrontation. As Weiss backed away, Dukart and Rahim advanced until they stood between Weiss and his vehicle. Desperate and afraid, Weiss displayed his pistol, pointing it to the side and at the ground. According to Weiss, Rahim laughed and said, “That’s not even a real gun.” Then he spat on Weiss. After that, Weiss claimed Rahim grabbed for his gun, so he chambered a round and pointed the pistol at Rahim’s chest. At trial, Noah Dukart testified that Rahim responded by saying, “Do it then.” Weiss did. He fired a single fatal shot.
Unarmed, with a gun pointed at his chest, Rahim didn’t pose an immediate threat. At that point, had Rahim made an aggressive move toward Weiss, the defender might have had a more reasonable belief that he faced the imminent threat of great bodily harm or death. However, in the tense moment of the standoff, as Rahim waited for Weiss to respond, the window of justification had not yet opened. Steve Moses says, “Even though the other person said, ‘Do it then,’ it is very hard to defend the decision to fire without evidence that the attacker was coming.” Don West agrees, “If it’s a serious statement, then it’s asking for assisted suicide—but it’s more likely a type of taunting intended to emasculate Weiss without any real expectation of it happening. Either way, it’s not self-defense for the shooter.” An aggressor cannot open the window of justification with words alone.
Weiss’s encounter with Rahim bears some similarities to Rittenhouse’s first confrontation with Rosenbaum. Both Rahim and Rosenbaum exhibited aggressive behavior and made threats. According to testimony, both aggressors reached for the defender’s firearm. Contextual differences, however, change the assessment of the two defenders’ decisions to fire. Rittenhouse had fled from his attacker and found himself cornered before confronting Rosenbaum. Weiss, despite being separated from his car, could have chosen to walk away. Rittenhouse fired only when Rosenbaum lunged forward in an effort to seize the rifle. Weiss fired while the aggressor stood still, presumably waiting for Weiss’s next move.
In many ways, a jury would judge Weiss as much for his actions before the shooting as for his ultimate decision to pull the trigger. Weiss’s decision to re-engage Dukart after going back to his car adds an extra dimension to the evaluation of his justification—especially considering that Minnesota is a duty-to-retreat state. The prosecutor in the Weiss case, Olmstead County Attorney Mark Ostrem, said, “The law requires that deadly force be employed only after attempts to avoid the danger have been made and there is no other option.” Don West says, “Duty to retreat, where applicable, requires an additional assessment and decision point before the window of justification opens.” Even in states that don’t have a duty to retreat law, such as Wisconsin at the time of the Rittenhouse shootings, any effort the defender makes to retreat can have an impact on how jurors view the case.
Weiss faced trial twice for killing Muhammed Rahim. Both juries deadlocked, resulting in mistrials. Ostrem decided not to try the case a third time, and he reluctantly dropped the charges, telling reporters, “I believe strongly that Mr. Weiss’s decision to shoot Muhammed Rahim was unjustified.” Ardell Brede, a former mayor of Rochester, served on the second jury. He said that during deliberations, all the jurors “stuck to their principles,” and he noted the sticking point for the jurors was the “duty to retreat or avoid danger.”
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On Black Friday, 2012, shortly after dark, Michael Dunn pulled into a crowded convenience store parking lot in Jacksonville, Florida. Dunn waited in his Volkswagen Jetta while his fiancée went inside to buy wine and chips. He became annoyed by the loud rap music coming from the vehicle parked next to him—a red Dodge Durango full of teenagers. Dunn rolled down the window and asked the teens to turn down the music. The front passenger, Tevin Thompson, complied, but the backseat passenger, seventeen-year-old Jordan Davis, took offense. He yelled for Tevin to turn the music back up and started shouting obscenities at Dunn.
Dunn testified that Davis threatened him, saying, “I should kill that cracker,” and “You’re dead!” At trial, Thompson admitted that Davis had a reputation as a “hot head,” but he denied that Davis ever threatened Dunn’s life. Dunn also testified that he saw Davis place an object that looked like the barrel of a shotgun on the frame of the opened passenger window. In response, Dunn reached into his glove box, retrieved his pistol, unholstered it, and racked a round into the chamber. A witness at trial claimed to have heard Dunn say, “You’re not going to talk to me like that.” Dunn claimed he said, “You’re not going to kill me, you son of a bitch.”
In the middle of the heated exchange, Dunn said that Davis started to open the rear passenger door and declared, “This shit is going down.” That’s when Dunn fired a burst of three shots through the door. Two shots hit Davis in the legs. A third bullet entered his abdomen, striking his ribs, diaphragm, liver, aorta, and lungs. Dunn continued to fire as the driver of the Durango reversed out of the parking spot and drove to an adjacent parking lot. Thompson and his friends watched helplessly as Davis bled to death. Meanwhile, Dunn ushered his fiancée back into his vehicle, and he fled the scene. Feeling justified, and unaware that he had killed anyone, Dunn decided not to call 9-1-1 to report the shooting.
Later that night, Dunn learned of the fatality from a local news report. A witness to the shooting memorized Dunn’s license plate number, and in the morning, homicide detectives tracked him down. After being taken into custody, Dunn submitted to a lengthy interrogation. During the interview, Dunn learned that police found no evidence of a shotgun or anything that looked like a shotgun. Dunn’s fiancée told detectives that Dunn never mentioned anything about the shotgun following the incident. Ultimately, prosecutors charged Dunn with first-degree murder.
Dunn claimed self-defense, which meant a jury would decide whether Michael Dunn shot Jordan Davis out of a reasonable belief that the teenager posed the immediate threat of great bodily harm or death. Jurors would have to reconcile how an unarmed teenager posed a severe imminent threat when two car doors separated the two. Although Dunn claimed Davis had started to open his passenger door to get out, no witness supported his claim, and the forensics proved inconclusive regarding whether the door was open during the shooting. Evidence did show, however, that Davis died in the back seat of the Durango, and the shots that killed him passed through the rear passenger door. Even if Davis meant to exit the vehicle, Dunn shot him before he had the chance to do so—before the window of justification opened.
Moreover, at trial, prosecutors emphasized how many steps Dunn went through to make his weapon ready to fire. In assessing Davis’s immediate opportunity to attack Dunn, Don West asks, “If he had to get it from the glove box, take it out of the holster, rack the gun, aim it, and pull the trigger, how imminent did he think the threat was?” It appeared that Dunn decided to go for the gun during the heat of the argument, much too soon—unless he truly believed Davis was armed. It meant that, if the jury gave credence to Dunn’s testimony about the shotgun, he’d have a chance; otherwise, his claim had little merit.
Just as in the Alexander Weiss case, the jury deadlocked on Dunn’s murder charge. At least one of the jurors believed that prosecutors failed to disprove Dunn had a reasonable belief Davis posed a severe, imminent threat. Jurors struggled for 32 hours over the course of four days before the judge declared a mistrial. Prosecutors retried Dunn seven months later, and a different jury deliberated for just five and a half hours before finding Dunn guilty of first-degree murder.
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The mistrials in the Weiss and Dunn cases demonstrate that reasonable people can disagree while assessing whether a defender operated within the window of justification. To extend the metaphor, the window of justification is not always wide open or completely shut. Sometimes it’s open a crack, and someone—a detective, a prosecutor, a judge, or a juror—will have to decide whether it’s enough to excuse a homicide. And a mistrial, by the way, while preferable to a conviction, means the defendant must suffer through the time, expense, and emotional turmoil of another trial and face an uncertain outcome. Prosecution is punishment in and of itself.
As an armed defender, to avoid the chances of prosecution, you want to ensure the window of justification is wide open before you use deadly force. However, as Gary Eastridge points out, you cannot be the one who opens that window. The Defender in the Alan Womack shooting constantly retreated from his attacker, and he fired only when the assailant tracked him down and armed himself. Likewise, at every point of Kyle Rittenhouse’s ordeal, he tried to flee his pursuers, firing in self-defense only when cornered and after he fell. Conversely, both Alexander Weiss and Michael Dunn had the opportunity to drive away from the conflicts that sparked their shootings, but they chose to stay and engage. Weiss and Dunn had the opportunity to close the window of justification through non-violent means.
If you consider Gary Eastridge’s concept of a window of justification when you face an aggressor, you’ll recognize that you may have other options short of resorting to your firearm. When you make efforts to retreat or de-escalate with verbal cues or even deploy less-lethal self-defense tools, then you are attempting to close the window of justification. Often, such efforts will allow you to avoid a deadly encounter altogether, and even if they fail, it makes it less likely that you’ll shoot too early if an attacker forces the window of justification back open despite your best efforts to keep it shut.
