Attorney Don West quotes a popular self-defense adage when he says, “Every bullet comes with a lawyer.” That’s because “you have to defend every shot,” Don adds. When a defender fires multiple times in a self-defense encounter, some of those shots may be justified and some may not, depending on the rapidly changing nature of the circumstances. As an armed defender, you want to be legally justified every time you pull the trigger.
In Lesson 6, we explored the concept of a window of justification, describing the dynamic moment when the defender reasonably believes an aggressor has the ability, opportunity, and intent to cause imminent death or serious bodily harm. We have encountered several cases where an armed defender fired their initial shots within that window of justification, but their final shots rang out after the window had closed. It means their first shots were justified, but their last shots were not.
Many people considered Jerome Ersland a hero when news broke that he shot an armed assailant who attempted to rob his Oklahoma City pharmacy. However, when police reviewed the security footage, they learned that, after the assailant fell to the ground, incapacitated and bleeding from the head, Ersland stepped over his body, retrieved a second pistol, and fired five rounds into the robber’s body. The first shot was self-defense, the next five were murder. A jury convicted Ersland, and he received a life sentence. To most objective observers, Ersland clearly fired those final shots long after the window of justification had closed. Other cases have proven tougher to assess.
Shortly after midnight on New Year’s Day, Gyrell Lee shot and killed Quinton Epps on a street in Elizabeth City, North Carolina. Lee’s cousin, Jamieal Walker, had an ongoing feud with Epps, which manifested in a series of escalating verbal altercations throughout New Year’s Eve. During the final encounter, Walker punched Epps. Epps responded by shooting Walker in the stomach. Believing he was next, Lee drew his pistol and shot Epps several times, killing him. At trial, prosecutors highlighted evidence of a “divot” in the pavement under Epps’s body, suggesting at least one of the shots struck after Epps had already fallen and lay prone on the ground. Lee fired that last shot, they argued, after the window of justification had closed.
In the Ersland case, the jury deliberated for just three and a half hours. Lee’s jury, in contrast, struggled for seven hours on a Saturday before they told the judge they could not reach a unanimous decision on the second-degree murder charge. In an attempt to avoid a mistrial, the judge ordered jurors to try again, issuing an Allen Charge. It worked. About an hour later, the jury emerged with a verdict. Guilty. It was a tough call. One reluctant juror wept.
Firearms instructor Steve Moses tells his students, “You need to be looking for reasons that you don’t have to shoot this person.” To avoid firing at an attacker after neutralizing the threat, Steve says, “You need to stay dialed into what the other person is doing. You need to be looking for their reaction so you can assess and adapt.”
John Farnam, founder of Defense Training International, sometimes serves as a use-of-force expert in self-defense cases, and he has seen prosecutors argue that defenders who fired multiple times used excessive force. “The picture they’re trying to paint,” John says, is that the defender “carefully fired a shot, and then fired another one, and then another when they were not necessary.” He warns, “Some people don’t know how fast a modern pistol can be fired.”
Don West says that, with the help of experts such as John Farnam, defense lawyers can educate juries about how an armed defender can fire multiple rounds in a single continuous action. However, while firing too many rounds can be explained away at trial, Don also says the less you must explain to a jury, the better. As an armed defender, if you learn to control your fire, as Steve describes, then you may not need someone like Don West or John Farnam to convince a jury to forgive you for pulling the trigger after the window of justification had closed.
For Lesson 7, we will revisit the Loud Music Trial in Jacksonville, Florida, where Michael Dunn, convicted of murder for shooting too early, was also convicted of attempted murder for shooting too late. Then we’ll travel to Greenwood, Indiana, to see how Dean Keller narrowly justified firing a fusillade of gunfire at his neighbor. Finally, we’ll return to the Clearwater, Florida, convenience store parking lot to see how Michael Drejka’s failure to assess and adapt to his attacker’s reactions cost him his freedom.
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In Lesson 6, we explored the Loud Music Trial, where Michael Dunn shot and killed 17-year-old Jordan Davis in Jacksonville, Florida. Davis sat in the back seat of a red Dodge Durango, listening to music with his friends Tommie Stornes and Leland Brunson while the driver, Tevin Thompson, went inside to buy some smokes and breath mints. Michael Dunn pulled into the parking spot next to the Durango and waited while his fiancée, Rhonda Rauer, purchased some white wine and chips.
When Dunn rolled down his window and asked the teenagers to lower the volume of their music, Davis erupted with anger—cursing and issuing threats. Dunn claimed he saw Davis rest something that looked like the barrel of a shotgun on the frame of the open rear passenger window. He claimed Davis shouted, “You’re dead!” He said the teenager opened the door and started to get out.
“You’re not going to kill me, you son of a b****,” Dunn said in response before he retrieved his pistol from the glove compartment, unholstered it, chambered a round, and fired three shots in rapid succession into the rear passenger door of the Durango, mortally wounding Davis. By this time, Thompson had returned to the vehicle. He threw it into reverse, and as he backed out, Dunn fired another burst, four rounds that became lodged in the front passenger door.
Rhonda Rauer heard the gunshots from inside the convenience store. After the second burst of shots, there was a pause, and then she heard a final burst of three shots. Outside the store, a witness saw Dunn exit his vehicle and take a knee—later described as a “police position”—before firing three carefully aimed shots as the Durango sped away. “Covering fire,” Dunn explained to jurors, to make sure the teenagers wouldn’t shoot back as they fled. Each shot from that final burst struck the Durango. None of the bullets injured the occupants, but one bullet became lodged in the sun visor, narrowly missing the driver’s head.
Dunn faced trial twice for the ten shots he fired at Jordan Davis and his friends. The jury for Dunn’s first trial failed to convict the shooter of murder. According to news reports, after the closing arguments, jurors split nine to three in favor of a conviction on the murder charge. After 32 hours of brutal deliberation over four days, the majority had only convinced one juror to switch sides. With two holdouts, the jury deadlocked, and the judge agreed to call a mistrial—but only on the murder charge.
The jury unanimously agreed that Michael Dunn had no legal justification for firing at the retreating Durango, and they convicted him on three counts of attempted second-degree murder and one count of “firing a deadly missile.” For Dunn, the mistrial on the murder charge made little practical difference to his future because he faced a minimum mandatory sentence of 20 years for each count of attempted murder. To a 47-year-old man, 60 years effectively constitutes a life sentence. When a second jury convicted Dunn of murder, the judge officially sentenced Dunn to life in prison without the possibility of parole. There was controversy regarding whether Dunn shot too soon, but everyone agreed that Dunn fired the final shots too late.
Don West says, “This is a case about crossing a line and losing the justification for defending yourself with deadly force, even if you were justified at first.” In many ways, Dunn’s first trial was about the bullets he fired after the perceived threat had ended, while the second trial concerned the first round of bullets that killed Jordan Davis. Because the second burst of bullets failed to penetrate the passenger door, the prosecutors largely overlooked those shots when they charged Dunn. Had those shots injured or killed the front passenger, it would have added a completely new dimension to his already complicated legal defense. Prosecutors treated each burst of gunfire as a distinct event, and in practical terms, Dunn faced separate legal consequences for each.
As a side note, a private practice criminal defense lawyer represented Dunn at his first trial. Court-appointed attorneys defended Dunn the second time around. Every bullet comes with a lawyer.
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Indiana firefighter Dean Keller had a long history of confrontations with his neighbor, Jeffrey Weigle, before he shot him four times. Notably, a nasty fight in 2011 left Keller with scratches and bite marks on his skin, while Weigle suffered a stab wound to his arm. Six years later, on June 27, 2017, the feuding neighbors encountered one another on opposite sides of a shared fence on their property line. A security camera Keller installed in his yard captured the confrontation.
In the video, Weigle hurls insults across the fence at Keller before mounting his riding lawnmower and driving off-frame. Keller says something, which is indiscernible to the security camera microphone, but it catches his neighbor’s attention. Weigle reverses his lawnmower and comes back into frame. Footage shows Weigle reach into his pocket and pull out a revolver, which he points nonchalantly skyward. In response, Keller draws a pistol and fires several rounds, causing Weigle to fall off the mower. Keller shoots several more times, and Weigle attempts to return fire. When the shooting is over, Weigle stands up, hurls one last insult, and walks away.
Despite suffering four gunshot wounds to the chest, Weigle survived. He spent nearly a month in the hospital before being transferred to a rehab facility, where he stayed until he recovered enough for police to take him to the Johnson County jail. Prosecutor Brad Cooper charged Weigle with a single count of criminal recklessness with a deadly weapon. Weigle “was the first to pull out his weapon and wave it in the air,” Cooper stated, justifying his decision.
Cooper announced his decision not to charge Keller in the shooting eight days after the incident. “Upon seeing Weigle’s handgun, Keller drew his handgun and fired at Weigle,” the prosecutor’s statement read. “Given the aggression shown by Weigle … it was reasonable for Keller to believe deadly force was necessary to prevent serious bodily injury to himself and/or his wife, who was standing nearby,” the statement continued. “The decision not to file charges on Keller was a simple application of Indiana law and should not be looked upon as condoning the behavior of either party.”
Cooper’s decision not to charge was “simple” partly because the video captured the entire event. Without the video, Cooper wouldn’t have had any evidence that Weigle possessed a gun beyond Keller’s testimony. Weigle took it with him when he walked away. Even with the video, because of obstructions, Weigle’s revolver appears for only a few frames. Had Keller been standing a step or two to his left, the video may have told a very different story. He was lucky the video captured what it did. Keller was also lucky that none of the four shots that struck Weigle in the chest proved fatal. A self-defense shooting that results in a homicide naturally invites more scrutiny, and prosecutors often feel more pressure to file charges.
Luckier yet, it appears that none of the final shots Keller fired struck Weigle. I suspect the riding lawnmower provided cover when he fell off. In the Jerome Ersland case, the medical examiner concluded that while the pharmacist’s first shot incapacitated the assailant, it did not kill him; it was the five shots to the torso that proved fatal. If the pharmacist’s first shot had killed the assailant, then those final shots, although excessive and macabre, might have constituted some crime short of murder. Likewise, if Keller’s final shots had struck Weigle after he fell, then the prosecutor may have reached a different charging decision. Hypothetically, if one of those final shots had impacted Weigle slightly to the left or the right, killing him, then Keller might have crossed the line separating self-defense and murder, just as Ersland, Lee, and Dunn had. Don West says, “Even if the first shots are justified, it still matters if the last shots were justified.”
Had Keller trained to fire and assess, as Steve Moses instructs, he might have stopped firing when Weigle fell from his riding lawnmower. “We teach our students not to shoot faster than one-half second between rounds,” Steve says. “You see a lot of guys who can put five rounds on a seven-inch bull in a second, but if you shoot that fast in real life, the attacker could give up, surrender, or drop their gun, and the defender might not have time to respond.” If you keep firing after you’ve won the fight, you risk losing that legal battle that may follow.
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Michael Drejka won his fight but lost the ensuing legal battle. You may recall from Lesson 1 and Lesson 2 that Drejka shot and killed Markeis McGlockton in a Clearwater, Florida, convenience store parking lot. Drejka initiated a verbal altercation with McGlockton’s partner, Britany Jacobs, over a handicapped parking spot. As McGlockton exited the store, he saw the argument, marched up to Drejka, and without warning, violently shoved him to the ground. Drejka struggled to a sitting position, and as McGlockton stridently advanced, Drejka drew his pistol and pointed it at his attacker.
At that moment, Don West notes, McGlockton had committed a violent criminal act. Although unarmed, McGlockton was younger than Drejka, bigger, and in a tactically superior position. If McGlockton wanted to continue the attack—and his movement and posture suggested he did—then he also had the ability and opportunity to inflict great bodily harm or death. Had Drejka fired the pistol at the moment he drew it and pointed it at McGlockton’s chest, then he may have been legally justified in his use of force.
But Drejka didn’t fire right away. Security camera footage shows the defender pause for a moment before shooting. During that pause, McGlockton’s posture changes. The attacker takes a few steps backwards. His aggressive demeanor melts. Once McGlockton sees Drejka’s gun, he loses his appetite to continue the attack, but Drejka fires anyway—a single fatal shot that pierces McGlockton’s heart.
At first, Pinellas County Sheriff Bob Gualtieri declined to charge Drejka, citing Florida’s stand-your-ground law, but he expressed reservations. Referencing the security camera footage, Gualtieri said, “As you can see in there, there is a pause—even if it’s only for a couple of seconds. There is a pause between the time Drejka hits the ground and he shoots. That pause gives me pause. That pause gives me some concern.”
That pause concerned the prosecutor’s office also, and after a three-week investigation, State Attorney Bernie McCabe filed manslaughter charges. A year later, a jury found Drejka guilty. Jurors who spoke to the press expressed similar concerns about the pause. Juror Timothy Kleinmann said, “He had time to think, ‘Do I really have to kill this man?’ And no, he didn’t, but he chose to.” Alternate juror Edie Clator said, “The defendant had enough time to make the decision that once he saw the victim retreating, that he did not have to pull the trigger.” The other alternate, Keith Booe, simply said, “I think he had the opportunity not to kill him.”
Steve Moses says, “If we have made the decision to shoot that person, and we see anything in their action that suggests it’s not necessary—a pause, breaking off—then we need to get that gun back out of play.” In reference to what alternate juror Booe said, armed defenders have an obligation to take opportunities to avoid the use of deadly force when they encounter them. Responsible, well-trained armed defenders know to look for and to create opportunities not to shoot.
Prosecutors made the argument that Drejka not only missed “the opportunity not to kill,” but that he had been affirmatively seeking an opportunity to justify using his firearm. The investigation revealed that Drejka had previously confronted the driver of a septic truck who had parked in the very handicapped spot that sparked the argument with Britany Jacobs. According to the driver’s trial testimony, Drejka shouted obscenities and said, “I should shoot you, kill you.” The driver’s boss also testified, saying Drejka called the company to complain about the driver: “He said, ‘If I had a gun, I could have shot him.’”
That testimony evokes the Can-May-Should-Must continuum popularized by criminal defense attorney Steven Harris. He explains that the question Can I shoot? literally refers to the armed defender’s physical ability to shoot an attacker—their ability and opportunity. “May is the question actually being asked,” Harris says. “That is: If I can, may I employ deadly force and be within the bounds of applicable use of force laws which immunize me for adverse criminal and civil consequences.”
The spirit of the law implies that the only time a defender may use deadly force is when they must use deadly force to prevent the imminent threat of great bodily harm or death. Before Drejka drew his pistol, as McGlockton continued to advance, Drejka reasonably believed that he faced the immediate threat of great bodily harm. McGlockton had opened the window of justification. But when McGlockton stepped backwards at the sight of Drejka’s pistol, the window of justification closed quickly, and Drejka didn’t adapt to the changing conditions. Steve Moses says, “I think that Drejka thought this was a may circumstance, and that this was, for lack of a better term, his opportunity to shoot somebody.” If true, Drejka’s misguided intentions caused him to shoot McGlockton a moment too late—just after the threat was over.
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Don West and I have played the video of Dean Keller shooting Jeffrey Weigle at seminar classes for concealed carriers. As of this writing, you can find it pretty easily with an internet search. Frequently, one of the concealed carriers in the class will note that, in the video, it appears that Keller experiences a moment of recognition when his neighbor displays the revolver—a realization that Weigle has just opened the window of justification for responding with deadly force.
Based on an objective, by-the-letter interpretation of the law, Keller was correct. When Johnson County Prosecutor Brad Cooper charged Weigle, he said, “He was charged with being the person who brought out the handgun and started waving it. A person could get hurt, and that person was him.”
Cooper called his decision a “simple application of Indiana law.” The application of the law is only simple when you’re the prosecutor, and you decide not to press charges. If you’re an armed defender, the application of the law gets complicated quickly. Had Cooper decided to take the case to trial, jurors would be asked to make a subjective assessment of Keller’s actions—not just an objective legal interpretation. Even if the jury had been made up of twelve concealed carriers, my experience showing this video in self-defense classes tells me that several of them would wonder aloud whether Keller shot Weigle because he had to … or just because he could.
In most self-defense scenarios, the window of justification opens and closes very quickly. As an armed defender, your mindset as you enter a potentially violent confrontation will dictate how you navigate the encounter. If you are governed by fear and lack of confidence in your abilities, you might panic and shoot before the threat is imminent, as we explored with Alexander Weiss and Michael Dunn in Lesson 6. If you possess resentment and malice, then you might be tempted to shoot after the threat has ended, as we demonstrated with Jerome Ersland, Michael Dunn, and Michael Drejka in this lesson. If you’re simply cavalier, like Dean Keller, or over-zealous like Gyrell Lee, you may still be subjecting your fate to the discretion of a prosecutor, opening yourself to significant legal jeopardy.
The key to staying within the window of justification in a self-defense scenario is to get training, to assess every shot you fire before firing again, and to always look for opportunities to close the window without resorting to deadly force. If you can safely do so, find an opportunity not to kill, and take it.
