CCW Safe: Recent Episodes
Mike Darter
CCW Safe features video and audio podcast series surrounding shooting sports, law of self defense, and concealed carry
You can’t claim self-defense if you started the fight. In most jurisdictions, if you’re seen as the first aggressor, you may lose the legal protections that justify the use of force—even if you find yourself in imminent danger later. Prosecutors may frame the incident as “mutual combat,” which undermines your self-defense claim. To stay protected under the law, you must be reacting to a threat, not instigating one.
Claude Werner, The Tactical Professor, joins the podcast to discuss how armed defenders can identify potential threats before they become life-or-death matters.
Don West and Steve Moses join Shawn Vincent to talk about the importance of avoiding emotional hijacking for armed defenders.
CCW Safe President Kent Brown talks with Luke McCoy from USACarry.com about traveling with firearms.
Don West and Steve Moses join Shawn Vincent to talk about the "armed defender’s dilemma" regarding the "window of justification," specifically focusing on the danger of shooting after a threat has ended.
Don West and Steve Moses join Shawn Vincent to talk about the concept of the “window of justification” and to explore the legal perils for armed defenders who shoot before the threat of great bodily harm or death is imminent.
In self-defense law, it’s not enough that you feared an attacher—what ultimately matters is whether a jury will decide that your belief in imminent great bodily harm or death was objectively and subjectively reasonable under the totality of the circumstances..
Criminal defense attorney Don West explains the core legal standard for the justifiable use of deadly force in self-defense, and firearms instructor Steve Moses provides a nuts-and-bolts tactical translation of the law to help inform armed defenders’ decision-making in a self-defense scenario.
Shawn Vincent talks with attorney Don West about the legal consequences of self-defense, including a discussion of the potential charges an armed defender could face in the wake of a self-defense shooting, and a candid exploration of the realities of enduring a criminal prosecution.
Steve Moses talks to Don West and Shawn Vincent about how proper self-defense training from qualified, credentialed instructors gives armed defenders the competence and confidence to make smart decisions in a dynamic self-defense scenario.
Lesson 1: The Goal of Self-Defense Is to Break Contact Breaking contact with an aggressor can mean using deadly force when justified, or simply walking away—with a range of actions in between, including verbal de-escalation techniques and less-lethal force options. By adopting a “break contact” self-defense mindset, armed defenders give themselves more tactical options while reducing the legal jeopardy resulting from a potential use-of-force event.
Firearms trainer Erick Gelhaus joins the podcast to talk about the tactical and legal benefits of a low-ready defensive display when a threat justifies the potential use of deadly force.
After more than 25 years in law enforcement, Doug Deaton became a consulting and testifying expert witness for defense attorneys and armed defenders in self-defense cases. True self-defense trials are relatively rare, and sometimes the prosecutor and judge – and especially the jury – aren't aware of all the nuances of self-defense law. That’s when having a good consulting expert like Doug Deaton can make the difference.
Retired police officer and firearms instructor Greg Ellifritz joins the podcast to talk about defensive display and brandishing incidents he responded to as a law enforcement officer. While brandishing a firearm is a crime, a justified defensive display of a firearm can be a viable alternative to using deadly force in a self-defense scenario.
A Wisconsin man came home to his apartment late at night and was surprised to find his home had been the target of burglars. He was even more surprised when one of those burglars returned to retrieve some valuables he had left behind. The occupant of the apartment shot and killed the intruder in a justified self-defense shooting. Don West and Steve Moses join Shawn Vincent to discuss the legal protections of the Castle Doctrine and the need for an armed defender to secure their home in the immediate aftermath of a break-in.
An armed defender in Lapeer, Michigan was convicted of murder for shooting a man who was attacking him with a crowbar. It turns out, the shooter actually left the scene of the initial confrontation and came back. Also, evidence suggests the defender drew his pistol before the attack, making him the first aggressor. Don West and Steve Moses join Shawn Vincent to explore the lessons for concealed carriers.
Don West and Steve Moses join Shawn Vincent to explore the case of Scott Hayes, a pro-Isreal demonstrator who was violently tackled by an unarmed pro-Palistineian demonstrator. Hayes fired a single, non-fatal shot, and prosecutors charged him with assault with a deadly weapon. Is Scott Hayes being wrongfully prosecuted, or did he use disproportional force agains an unarmed threat?
Law enforcement veteran and consulting expert Doug Deaton explains that when a concealed carrier fires in self-defense, they become the subject of a legal process that will dominate their lives until it is concluded – whether that is a decision not to file charges or a trial verdict. Once the process has begun, there is no turning back.
Akira Fletcher had an ongoing feud with another woman, Nyema Norton, culminating in a confrontation where Fletcher shot Norton after an initial altercation had seemingly ended. The case touches on themes of de-escalation, managing emotional responses, and the dangers of following an aggressor. Fletcher’s decision to exit her vehicle and re-engage Norton verbally, after the initial threat had seemingly subsided, complicated her self-defense claim. Her history of animosity with Norton raises doubts about her motives for using deadly force. Her decision to share incriminating evidence on social media further exacerbated her legal challenges. The case serves as a cautionary tale for how emotions, an ongoing grudge, and the failure to de-escalate can severely impact the outcome of a self-defense claim.
Steve Moses joins hosts Shawn Vincent and Don West to look at the lessons learned from this incident.
Law enforcement veteran and consulting expert Doug Deaton explains that when a concealed carrier fires in self-defense, they become the subject of a legal process that will dominate their lives until it is concluded – whether that is a decision not to file charges or a trial verdict. Once the process has begun, there is no turning back.
A man in Spokane took it upon himself to livestream a video of a homeless encampment. When he felt threatened by some of the vagrants, he retrieved a firearm from his car, proclaimed he was “constitutionally protected,” and reengaged with some of the individuals who surrounded him while asking for him to leave. Feeling threatened, he fired in self-defense. Just because you have the right to be somewhere or do something doesn’t mean it's a smart or appropriate thing to do.
The Daniel Penny case, while not involving a firearm, raises critical questions about the use of force in self-defense and the defense of others. Don West and Steve Moses join Shawn Vincent to discuss the legal and tactical intricacies of Daniel Penny’s use of force and his subsequent criminal defense.
Shawn Vincent and Don West look at how retired MMA fighter Shannon “The Cannon” Rich found himself in an argument over a parking space when the other guy attacked him with a knife. Rich retrieved a pistol from his vehicle and fired a lethal shot in self-defense. Eyewitness accounts and security footage matched Rich’s statement to police and he was not charged, but the experience provides lessons for concealed carriers about the value of de-escalation and some insight on how to navigate post shooting interactions with law enforcement.
CCW Safe Co-Founder Mike Darter is joined by CCW Safe Critical Response Team member Cris Cunningham to discuss current events and trends in the justice system as well as the day to day realities of being a concealed carrier that may have to deal with that system if a worst case scenario were to occur.
A news story about a homeowner who shot a bear on his property raises questions about when armed defenders can use firearms against animals. Don West and Steve Moses join Shawn Vincent to discuss the legal and tactical liabilities armed defenders should consider before using deadly force against wildlife, feral dogs, or rogue neighborhood pets.
A 77-year-old man in Oakland, California confronted three would-be burglars in his backyard. While one intruder escaped over a fence, the home defender shot and killed a second, while he held the third at gunpoint until police arrived. Steve Moses and Don West discuss the tactical and legal risks of exiting your home to confront intruders in your yard and the perils of holding a suspect at gunpoint. This defender was initially arrested for the shooting – in part because he didn’t make any statements to law enforcement, including making a self-defense claim. We’ll look to his example for lessons on how to interact with law enforcement in the wake of a self-defense shooting.
One of the most common self-defense scenarios armed defenders may confront in their homes is dealing with a potential threat banging on the front door late at night. Many times, the stranger on the other side of the door turns out to be someone who is lost, confused, drunk, high, or injured. Sometimes the potential threat turns out to be a law enforcement officer, perhaps mistakenly at the wrong house. It’s also possible, the person is an intruder who presents a legitimate threat. Steve Moses and Don West explain why opening the door to a stranger at night is a mistake – both from a tactical and legal perspective, and Steve provides practical alternatives for armed defenders who find themselves dealing with an unknown threat at the front door.
CCW Safe Co-Founder and CEO Mike Darter is joined by Co-Founder and COO Stan Campbell to look back on the thirteen year history of the company.
George Alan Kelly claimed he fired warning shots at a group of illegal migrants trespassing on his borderlands Arizona ranch. Later, one of those men was found dead, shot in the back. Kelly faced trial for murder charges. Seven of eight jurors voted for acquittal. One voted guilty. Kelly’s mistrial brings up issues of prairie justice, the trouble with warning shots, and the idea that no defendant ever wins a prosecution – the best they can do is survive it.
Daniel Perry fatally shot Garret Foster during a protest march in the summer following the police killing of George Floyd. Foster was dressed in tactical gear and carrying an AK-47-style rifle, and Perry claimed self-defense. Perry wasn’t immediately arrested, but a year later, after prosecutors uncovered troubling social media posts and messages, Perry faced murder charges, and a jury ultimately convicted him. In an extraordinary turn of events, the governor pardoned Perry. Don West and Steve Moses join Shawn Vincent to talk about the lessons the Perry case provides for concealed carriers.
CCW Safe Co-Founder and COO Stan Campbell is joined by Julie Golob. Julie is a champion shooter and CCW Safe ambassador that shares her extensive background and insights on shooting sports, firearm safety, and concealed carry, especially for women. Julie was a member of the Army Marksmanship Unit and is a current sponsored shooter for Smith & Wesson and Federal Ammunition as well as many other well known companies in the industry.
CCW Safe Co-Founder and CEO Mike Darter is joined by Former U.S. Navy SEAL Don Mann to discuss what things members can do to be better prepared for a self-defense encounter as well as general well being in life. Don is an author, motivational speaker and television producer who has created multiple books and television shows over the course of his career. For more info on Don please visit https://www.usfrogmann.com/
CCW Safe COO and Co-Founder Stan Campbell interviews Jeff Gonzales. Jeff is a former Navy SEAL and founder of Trident Concepts which is a training company for LE, Military and Civilians.
Shawn and Don look at the Self Defense Conundrum of how you can do everything right in a self defense incident yet still find yourself in prison through things outside of your control.
CCW Safe CEO and Co-Founder Mike Darter interviews CCW Safe President Kent Brown about his background and his experience with CCW Safe after being in place for the last two years.
This is part two of CCW Safe CEO and Co-Founder Mike Darter interview with CCW Safe Critical Response Team member Cris Cunningham. Cris is a retired Oklahoma City Police Officer. During her thirty one year career she spent seventeen years in the Homicide Unit as an investigator. Mike and Cris discuss her impressions of CCW Safe as well as her experience as an investigator benefits our members.
CCW Safe CEO and Co-Founder Mike Darter interviews CCW Safe Critical Response Team member Cris Cunningham. Cris is a retired Oklahoma City Police Officer. During her thirty one year career she spent seventeen years in the Homicide Unit as an investigator. Mike and Cris discuss her impressions of CCW Safe as well as her experience as an investigator benefits our members.
CCW Safe CEO and Co-Founder Mike Darter interviews Attorney Jennifer Chance who is the CCW Safe Assistant General Counsel. Jennifer is a former Prosecuting Attorney for Oklahoma County (Oklahoma City) and was Chief Counsel for Oklahoma Governor Mary Fallin.
CCW Safe Content Manager Justin Collett is joined by Firearms Trainers Association staff member Steve Moses to discuss how to find and select training for new shooters. They also dive into how competition can benefit those looking to learn and improve their skills.
CCW Safe Critical Response Coordinator Gary Eastridge hosts National Trial Counsel Don West and forensic expert Everett Baxter to discuss the importance expert witnesses can play in a trial. Everett also explains how the process for hiring and using a forensic expert works along with some examples from his background. Mr. Baxter joined the Oklahoma City Police Department in 1998 and was assigned to the Crime Scene Unit of the Oklahoma City Police Department for over 17 years. Mr. Baxter retired from the Oklahoma City Police Department in December 2021.
For more info on Everett visit his website at: https://ebjrforensics.com/
CCW Safe Co-Founder and COO Stan Campbell hosts CCW Safe National Trial Counsel Don West and Attorney Andrew Branca from Law of Self-Defense for an hour long discussion on the legal aspects of self-defense. Topics include stand your ground vs duty retreat states and what that really means, the importance of choosing the right self-defense attorney and why most people simply are not equipped to do so, why warnings shots are not a good idea and understanding the importance of your social media in a self defense trial.
Andrew has a free webinar for CCW Safe members available at: https://lawofselfdefense.com/ccwsafeclass
For all of Andrew's content visit: https://lawofselfdefense.com
Learn more about our company and how we can protect you and your family by visiting: www.ccwsafe.com
CCW Safe Content Manager Justin Collett is joined by JJ Racaza to talk about his background and his path to becoming a World Champion Practical Shooter as well as his rise to being a trainer for elite military units, law enforcement, competition shooters and concealed carriers. JJ discusses his journey into federal law enforcement with a stint in the Federal Air Marshal Service, his operational time and his time spent in the training side of the house. Along with some entertaining stories he discusses the importance of de-escalation, situational awareness and avoidance for everyone who carries a gun.
For more info on Project Blue Lion visit: https://howitzerclothing.com/pages/project-blue-lion
Attorney Michael Panella joins Don Wes and Shawn Vincent to discuss the ramifications of the Zimmerman trial 10 years after the verdict. Today’s conversation illustrates the importance of forensic evidence – especially in the context of the defender’s testimony. We also discuss what the case reveals about the importance of mindset and situational awareness for concealed carriers.
Attorney Michael Panella joins Don West and Shawn Vincent 10 years after the Geroge Zimmerman trial to discuss the consequences of the verdict on stand-your-ground laws. The conversation includes insight into why George didn’t have to take the stand at trial.
Attorney Michael Panella joins Don West and Shawn Vincent to talk about the legacy of the George Zimmerman case on the 10th Anniversary of the trial. Today’s conversation covers how public scrutiny affected the justice process, jury selection, and the decision to charge George in the first place.
Rob High is joined by David Sproles and Jeremy Zimmer of Middle Tennessee Firearms Training to discuss their training company and their journey to becoming firearms trainers.
For more info on Middle Tennessee Firearms Training visit: https://midtnfirearmstraining.com/
Host Rob High speaks with Doug Deaton of RDR Private Investigations & Crisis Management. Doug is a retired Plano Texas police officer and owner of RDR which focuses on expert witness services for use of force cases.
For more in on Doug and RDR visit: https://rdrtexas.com/
Host Rob High is joined by Retired U.S. Army Lt. Colonel Ed Monk. After spending 24 years in the Army as an Armor Officer Ed became a High School teacher then Law Enforcement officer and firearms trainer. One of his areas of expertise has become the study of active shooter events and the responses to them. Rob and Ed discuss how the response to these events have changed and some things that can prevent them in the first place.
Legendary firearms instructor John Farnam talks to the gang about “soft skills” that can keep an armed defender out of avoidable conflicts, and make them hard to convict after a necessary use of force incident.
Rangemaster founder Tom Gives talks to Don, Steve, and Shawn about having a home defense plan so you know what to do if an intruder ever enters your home.
Rangemaster founder Tom Givens talks to Don West, Steve Moses, and Shawn Vincent about how security devices might not keep a motivated intruder out of your house, they can give you warning and buy you time to mount a defense.
Rob and Phil are joined by Erick Gelhaus who is a 29 year veteran law enforcement officer from California and current Rangemaster at Gunsite. Erick discusses his background, the current state of firearms training and the types of training he thinks are important for people to consider.
Host Rob High is joined by Joseph and Jessica Hazelaar who own Eclipse Holsters out of Williamsburg Virginia. Joesph and Jessica talk about their journey from a small home shop making kydex holsters to a full time business with employees that is flourishing and growing. They also discuss some of the things to look for in a quality kydex holster.
Hosts Rob High and Phillip Naman are joined by author, business owner and veteran Magda Khalifa to discuss her new book American Dream and path that led her to writing it. They also discuss her company Triangle Fragrance.
Hosts Rob High and Phillip Naman are joined by Cecil Burch from Immediate Action Combatives. The guys talk about self-defense training with and without firearms as well as go through some of the principles that Cecil finds important in that training.
Former TSA Lawyer Scott Klippel joins the podcast to talk about how to avoid the mistake of inadvertently taking a firearm through airport security, and what will happen if you do.
Don West and Steve Moses join Shawn Vincent to discuss the case of an Arizona rancher accused of murdering a migrant who was part of a group that crossed the border illegally and trespassed on his property.
Host Rob High interviews Annette Evans who is an Attorney, 2A Advocate and founder of the On Her Own website. Annette discusses her journey with self-defense training both armed and un-armed as well as her path as a competition shooter.
For more info on Annette and the content she produces visit her at: https://onherown.life/
Hosts Rob High and Phillip Naman are joined by Craig Douglas to discuss various aspects of self defense training. Craig Douglas (a/k/a “SouthNarc”) is the founder of ShivWorks, a consortium of like-minded professionals devoted to training and product development in the emerging field of interdisciplinary problem-solving for self-defense. Craig retired from law enforcement after 21 years of service with the bulk of his career spent in narcotics and SWAT. Since 2003, Craig has been teaching globally under the ShivWorks brand and has conducted coursework on entangled shooting skills in nearly 40 states and nine foreign countries. He has taught for federal, state, and local law enforcement agencies, and to three branches of the U.S. military.
For more info on Craig and his classes visit: https://shivworks.com/
Hosts Rob High and Phillip Naman discuss Rob's trip to the 2023 Rangemaster TacCon. Rob presented a block of training at the event and discusses his experience there. The guys also talk about upcoming training they will be attending in 2023. For more info on TacCon visit: https://taccon.info/
Don West, Steve Moses, and Shawn Vincent talk about the power of the defendant’s testimony in the Dean Cummings case, along with issues associated with the poor police investigations, and critical errors made by the prosecutor during trial.
The conversation about the Dean Cummings case explores how the defender’s mental health issues can affect the legal defense and offers important considerations for armed defenders who choose long guns for home defense.
Host Rob High is joined by Oklahoma City Police Officer Bryan Eastridge to discuss training both from a student and teacher perspective. Bryan is a 20 year OCPD officer and a firearms trainer who teaches classes and at conferences across the country. He also hosts the Off Duty On Duty Podcast and is a founder of the EDC Belt Company.
For more on his podcast visit: https://offdutyonduty.com/
For more on EDC Belt Company visit: https://edcbeltco.com/
Hosts Rob High and Phillip Naman are joined by CCW Safe Co-Founder and COO Stan Campbell to discuss how members can best be aligned with their benefits and services.
In the podcast the guys discuss some best practices to stay within the terms of service as well as examples of some bad decisions people made that caused them to violate those terms.
Host Rob High is joined by CCW Safe President Kent Brown to discuss the new upgrades made to all existing CCW Safe member plans. These upgrades are free for all current and future members. The core mission of CCW Safe is to take care of our members and with these new additions to member plans we have increased the amount coverage available to all members for no charge.
Hosts Rob High and Phillip Naman discuss the importance of training multiple different forms of self-defense skills, talk about some of Phillip's recent training that he participated in and upcoming classes and events they will participate in.
Host Rob High is joined by Lisa Looper. Lisa is the owner and founder of Flashbang Holsters. Her company is one of the leading holster manufacturers focused on designs for women who carry a gun everyday. Lisa and Rob discuss the importance of good holster selection, what factors make a quality holster and get into some of the differences between men and women when searching for a concealed carry holster.
Hosts Rob High and Phillip Naman are joined by Attorney Chet Palumbo. Chet focuses on self-defense law and is involved in self-defense training that ranges from grappling to firearms. The guys discuss the importance of training and having the knowledge to win the legal fight after a self-defense incident.
Host Rob High is joined by CCW Safe Co-Founder Stan Campbell and Critical Response Coordinator Gary Eastridge to talk with CCW Safe member Stephen Maddox. In 2015 Stephen was forced to defend his life when attacked. He was arrested, charged with murder and was facing life in prison. CCW Safe was there for Stephen throughout his two year ordeal to prove that he acted in Self-Defense. Stephen was found not guilty by a jury in 2017. He joins us today to talk about how CCW Safe helped him both in and out of the courtroom.
Karl Rehn discusses how he designs his Force-on-Force training to simulate real-world self-defense situations, and how experience as an expert in self-defense trials gives him unique insight into how untrained defenders make mistakes in real-life circumstances.
Hosts Rob High and Phillip Naman discuss some holiday safety tips for people to consider. From shopping at malls and stores to some things to consider around your home that will help make your holiday season a safe one.
Hosts Rob High and Phillip Naman are joined by Todd Fossey of Integrative Defensive Strategies to discuss firearms and self-defense training. They discuss Todd's background and how he has developed his philosophy and methodology of training for all aspects of self-defense.You can learn more about Todd's company at https://thisisids.com/
Karl Rehn, the founder of KR Training, joins Don, Steve, and Shawn to talk about the need for training beyond the requirements for obtaining a concealed carry permit.
Don West, Steve Moses, and Shawn Vincent wade into some of the legal and tactical ambiguities of dealing with a potential threat, including the objective and subjective aspects of “reasonable belief,” the concepts of “initial aggressor” and “provocation,” and trying to understand the intent of a potential attacker
Hosts Rob High and Phillip Naman are joined by author and firearms trainer Mike Ochsner to discuss the mental side of firearms training and to discuss Mike's journey through developing his training curriculum.
Don West, Steve Moses, and Shawn Vincent discuss the basic legal tenants for the justifiable use of deadly force and how that relates to practical, tactical considerations for concealed carriers.
Hosts Rob High and Phillip Naman are joined by CCW Safe Critical Response Coordinator Gary Eastridge to discuss the impact social media posts can have on the investigation and possible trial after a self-defense incident.
This week Rob and Phil are joined by CCW Safe Critical Response Coordinator Gary Eastridge to discuss post incident actions. What should you do after a self-defense incident has occurred? Gary and Rob discuss their experience dealing with these situations both as Law Enforcement officers and in their role of Critical Response Team members for CCW Safe.
This week host Rob High is joined by Attorney Andrew Branca from lawofselfdefense.com to discuss road rage. They talk about how to avoid it and some points to consider if you fall victim to it.
This week host Rob High is joined by Attorney Andrew Branca from lawofselfdefense.com to discuss road rage. They talk about how to avoid it and some points to consider if you fall victim to it.
This week Rob and Phillip discuss some of the current events going on with gun laws across the nation and get into the importance of training for concealed carriers.
This week Rob and Phillip discuss some of the current events going on with gun laws across the nation and get into the importance of training for concealed carriers.
This week Rob and Phillip speak with Bryan Eastridge. Bryan is an active Oklahoma City Police Department officer, firearms instructor and host of the Off Duty On Duty Podcast.
This week Rob and Phillip speak with Bryan Eastridge. Bryan is an active Oklahoma City Police Department officer, firearms instructor and host of the Off Duty On Duty Podcast.
This week Rob and Phillip are joined by Kris "Tanto" Paronto. Kris is a former Army Ranger, Blackwater contractor and CIA GRS who was on the ground in Benghazi, Libya on September 11, 2012. He is the co-author of 13 Hours in Benghazi, the author of The Ranger Way and The Patriot's Creed. He has started a new venture in E3 Firearms Association.
For more info on E3 visit: https://www.e3firearmsassociation.com/
This week Rob and Phillip are joined by Kris "Tanto" Paronto. Kris is a former Army Ranger, Blackwater contractor and CIA GRS who was on the ground in Benghazi, Libya on September 11, 2012. He is the co-author of 13 Hours in Benghazi, the author of The Ranger Way and The Patriot's Creed. He has started a new venture in E3 Firearms Association.
For more info on E3 visit: https://www.e3firearmsassociation.com/
Steve Moses joins Don West and Steve Moses to talk about what to say and what not to say in the wake of a self-defense shooting and how social media comments can come back to haunt you.
This week Rob and Phillip are joined by Rick Travis of the California Rifle and Pistol Association to talk about the legislative fight for gun rights in California and other states across the nation. In particular they discuss California's response to the NYSRPA vs Bruen Supreme Court decision which has been to propose draconian restrictions on where people can carry a gun for self-defense.
Steve Moses joins Don West and Shawn Vincent to discuss the things an armed defender should consider when dealing with law enforcement in the wake of a self-defense shooting.
Host Rob High is joined by CCW Safe National Trial Counsel Don West and Jury Consultant Shawn Vincent to discuss the criminal trial process from start to finish. They examine how the process works, the important things required to be prepared for the process and the possible outcomes.
Firearms instructor Steve Moses joins Don West and Shawn Vincent to discuss the critical actions a defender should take in the immediate wake of a self-defense shooting.
For our 100th Episode host Rob High is joined in studio by CCW Safe Co-Founders Mike Darter and Stan Campbell to talk about the history of CCW Safe, how and why it was founded as well as some of the lessons learned over the history of the company.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by Paul Sharp to discuss training and mindset for concealed carriers. Paul is a former police officer, BJJ Black belt and founding member of the ShivWorks Group.
CCW Safe Use of Force Expert Rob High is joined by World Champion Shooter JJ Racaza. They talk about JJ's background, how he got into competition shooting as a child and the journey that path has led him on. From being a Federal Air Marshal to training some of the most elite units in the U.S. military as well as JJ's outlook on training for concealed carriers.
Video version on Youtube: https://youtu.be/G2dkgTRO4fc
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by Jeff Gonzales of Trident Concepts. They discuss Jeff's background, his career as a Navy SEAL and his journey after the military into the training industry.
For more info on Jeff, his current training and his new book on concealed carry visit https://www.tridentconcepts.com/
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by Major Ed Pulido, U.S. Army (Ret.) to discuss the Heart of a Lion Foundation that Ed founded with PGA Golfer John Daly.
Craig Douglas joins Steve Moses, Don West, and Shawn Vincent to talk about developing the skills and mindset required to live an armed lifestyle – one in which a concealed carrier avoids conflict whenever possible and uses force decisively and confidently when it is required.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by attorney Chuck Michele of the California Rifle & Pistol Association to discuss the recent Supreme Court ruling on NYSRPA vs Bruen as well as some states reaction to it.
In part two of this three part series ShivWorks founder Craig Douglass joins the podcast to discuss how being confident about your ability with tactics such as default cover, defensive display, and retention shooting can help you avoid using deadly force or make you successful when deadly force is necessary.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman talk about mission specific training.
In the first of a three part series renowned self-defense and firearms instructor Craig Douglass joins Don West, Steve Moses, and Shawn Vincent to discuss how defenders can develop verbal skills to manage interactions with potential aggressors.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by Mickey Schuch of CarryTrainer.com to discuss the Carry Trainer S12 event as well as training in general.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by CCW Safe Critical Response Coordinator Gary Eastridge to discuss safe gun handling and the fundamentals of gun safety. They also discuss the issue of brandishing.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman interview Ernest and Amy Langdon of Langdon Tactical also known as LTT. Well known for producing custom Beretta pistols and shotguns they have also recently launched the LTT Discover project which is a website and video series focusing on the basics of shooting, self-defense and safe gun handling for newer shooters.
Check out LTT at: https://langdontactical.com/ and LTT Discover at: https://lttdiscover.com/
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman discuss Constitutional Carry and its coming into effect in Ohio this week. They also talk about the benefits if the improved CCW Safe Constitutional Carry Plan.
Don West joins Steve Moses and Shawn Vincent to talk about the consequences of a self-defense shooting – even when the defender is acquitted by a jury.
Don West and Shawn Vincent explore the legal themes of the Curtis Reeves trial. Steve Moses provides tactical analysis.
In Part 2 of this podcast Firearms instructor Tom Givens joins Don West, Steve Moses, and Shawn Vincent to share his thoughts on verbalization, defensive display, less-lethal force, and the perils of warning shots. Also, a conversation about holsters, and iron sights versus red dot.
Nationally renowned firearms instructor Tom Givens joins Don West, Steve Moses, and Shawn Vincent to discuss “preclusion” versus duty-to-retreat, disparity of force, and assessing the physical abilities of “unarmed” attackers.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by guest Santiago Labos to training habits and competition shooting.
Claude Werner, The Tactical Professor, returns to the podcast to discuss his statistical analysis of self-defense cases with an emphasis on encountering home intruders. Don West and Steve Moses join Shawn Vincent to unpack Claude’s lessons for armed defenders.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by guest Sarah Albrecht from HoldMyGuns to discuss safe storage options.
Learn more about our company and how we can protect you and your family by visiting: www.ccwsafe.com
In the final part of our conversation about the DeRossett case, Don West and Shawn Vincent talk with attorney Michael Pannella about the extraordinary exoneration of John DeRossett and the lessons learned from the tragic shooting and prosecution.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman discuss Constitutional Carry and tips for new concealed carriers.
Don West and Shawn Vincent continue their conversation with attorney Michael Panella regarding their work on the John DeRossett case and dissecting the nuances of stand-your-ground laws and the concept of self-defense immunity.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by Matt and Angela Little from Greybeardactual.com. Matt is a U.S. Army Special Forces combat veteran, has years of experience working on a major metropolitan SWAT team and is a competitive shooter who currently offers rifle and pistol training classes all over the United States. Angela is a B Class USPSA shooter and the assistant instructor in open enrollment courses. She also teaches a variety of women-only and beginner’s classes. For more info on Matt and Angela visit their website: https://greybeardactual.com/
A botched Sheriff’s Deputy Raid, a warning shot, and wild gunfight, and a long, winding road to justice. Don West and Shawn Vincent speak with attorney Michael Panella about a wild self-defense case they all worked on together.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by CCW Safe COO Stan Campbell and Jacob Paulsen of concealedcarry.com to discuss the upcoming 2022 Guardian Nation Conference.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by Rick Travis, Director of Development of the California Rifle and Pistol Association. They discuss current firearms related legal challenges going through the courts.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman interview Oklahoma City Police Officer Katie Lawson who was involved in on duty incident where she was attacked by a man with a rifle who fired 26 rounds at her and hit her 6 times. She survived the attack, returned fire and drove off her attacker.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman interview Oklahoma City Police Officer Katie Lawson who was involved in on duty incident where she was attacked by a man with a rifle who fired 26 rounds at her and hit her 6 times. She survived the attack, returned fire and drove off her attacker.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman discuss the importance of first aid training and some the gear to consider carrying with you.
Don West, Steve Moses, and Shawn Vincent look behind the verdict of the Kyle Rittenhouse case, exploring the legal nuances that allowed Rittenhouse to survive the criminal prosecution.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by Tony Blauer of SPEAR System and Blauer Tactical Systems in part two of his interview to discuss training philosophies for self defense.
Firearms instructor Tatiana Whitlock introduces Don West, Steve Moses, and Shawn Vincent to the case of a violent kidnapping that was thwarted by a good guy with a gun. The case brings up important issues associated with the justified use of lethal force when used in defense of others or to stop an aggravated felony.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by Tony Blauer of SPEAR System and Blauer Tactical Systems to discuss training philosophies for self defense.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman discuss good reasons to document your firearms and self-defense training.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by CCW Safe Critical Response Coordinator Gary Eastridge to discuss weapon modifications and some things to think about regarding them.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by Attorney Andrew Branca to discuss the outcome of the Kyle Rittenhouse trial.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman talk about some things to consider and look out for when giving firearms as gifts.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman talk about the rising crime rates in large cities that we are seeing across the nation and some of the factors that are causing it.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by CCW Safe National Trial Counsel Don West to discuss the topic of warning shots.
Firearms instructor Tatiana Whitlock introduces Don West, Steve Moses, and Shawn Vincent to a harrowing home invasion in Houston that was thwarted by an armed family member.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman discuss the the Kyle Rittenhouse trial. This podcast was recorded November 18th before the verdict was reached.
Don West and Shawn Vincent explore points three and four on CCW Safe’s list of 10 things to do after a self-defense incident: initiating an emergency response and preparing for responding officers.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman discuss the importance of keeping an open mind when seeking out or participating self defense training.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by CCW Safe National Trial Counsel Don West and Attorney Andrew Branca from Lawofselfdefense.com to discuss Andrew's free book 5 Elements of Self Defense. They also touch on the ongoing Arbery trial in Georgia.
Don West and Shawn Vincent explore CCW Safe’s list of 10 things to do after a self-defense shooting, drawing upon real-life incidents to show how a defender’s behavior in the moments, minutes, and hours following a self-defense shooting can impact the criminal investigation and potential prosecution.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman are joined by CCW Safe Critical Response Team Coordinator Gary Eastridge to talk about one of the most often asked questions we get. Should you speak with police after an incident? Our experts take a deep dive into this complex and often misunderstood topic.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman look at equipment and holsters for concealed carriers this week.
CCW Safe Use of Force Expert Rob High and Firing Line Radio host Phillip Naman look at how and why you should prepare to be your own first responder.
CCW Co-Founders and podcast hosts Mike Darter and Stan Campbell are back after a lay off from podcasting to re-start the CCW Safe Podcast. They are handing the hosting duties off to CCW Safe Use of Force Expert Rob High and Phil Naaman host of Firing Line Radio Show.
CCW Safe’s Gary Eastridge shares his thoughts on our critical process of analyzing self-defense events for the lessons learned, and he shares an inside perspective on the long-lasting impact of surviving a use of force incident.
CCW Safe's Gary Eastridge joins Don, Steve, and Shawn to discuss the perils of leaving a place of safety to confront a threat and the folly of firing warning shots.
Steve Moses introduces Don West and Shawn Vincent to Chuck Haggard, a well-known instructor on the use of OC spray. The discussion touches on the legal and tactical benefits of pepper spray, especially when dealing with an unarmed attacker
CCW Safe CEO and Co-Founder Mike Darter sits down for a talk with CCW Safe Member Stephen Maddox. In 2015 Stephen was forced to defend himself after being attacked three times by an assailant. He was charged with Murder. CCW Safe was there for him and helped him win an acquittal at trial in 2017.
In the mid 90's Mike Darter was involved in an an on duty shooting working a drug task force for the Oklahoma City Police Department. He went through a civil trial in Federal court that was dismissed. That incident was one of the principle driving factors for the creation of CCW Safe. In this conversation Mike and Stephen talk about how they have dealt with the aftermath of their incidents and things that they have learned looking back on them.
For more details on both incidents you can watch each of them tell their story in their own words here:
Mike's Story: https://www.youtube.com/watch?v=bbQLQMV7MjM
Stephen's Story: https://www.youtube.com/watch?v=X6a_xm7PplI
Don West and Steve Moses join Shawn Vincent to explore how fear and anger can affect an armed home defender’s judgment, making an important distinction between the “fear” and “belief” of great bodily injury or death when considering the justification for using deadly force.
Don West and Steve Moses join Shawn Vincent to take a fresh look at the Byron David Smith case, discussing themes of right and wrong versus legal and illegal and weighing the myths of “prairie justice” against the realities of the American criminal justice system.
Don West and Steve Moses join Shawn Vincent to discuss the complicated legal defense in the wake of a self-defense shooting in which no one was harmed. Don West says that when you find yourself in the grips of the criminal justice system, there are no good results, just varying degrees of bad.
Don West, Steve Moses, and Shawn Vincent explore the curious case of Brenna Cavanaugh who was convicted as an accomplice in a self-defense shooting that harmed no one while the shooter was acquitted by a jury.
In Part 2 of our conversation with Chuck Haggard, Chuck description the different types of OC spray, how to train with OC, and he provides some tactical considerations regarding how and when it is appropriate to deploy OC, and what the goal of using OC spray is.
Steve Moses introduces Don West and Shawn Vincent to Chuck Haggard, a well-known instructor on the use of OC spray. The discussion touches on the legal and tactical benefits of pepper spray, especially when dealing with an unarmed attacker.
Steve Moses joins Don West and Shawn Vincent for a conversation about defenders in high-profile cases who have a history of conflict, and they discuss how concealed carriers who understand their own hot buttons can avoid unnecessary confrontations.
Firearms instructor Tatiana Whitlock joins Don West, Steve Moses, and Shawn Vincent to discuss the Melinda Herman case, where the mother of 9-year-old twins fought off a home intruder with a six-shot revolver. The conversation includes discussion about ammunition capacity, revolvers versus semi-automatics, and how to deal with a stranger knocking aggressively on your front door.
Tatiana Whitlock joins Don West, Steve Moses, and Shawn Vincent to share her insights on the Kristen McMains case where a young woman was violently attacked and escaped with her life thanks to the pistol she kept in her purse. The conversation includes discussion about the right weapon choice for women, and the challenges of off-body carry.
Claude Werner, “The Tactical Professor,” joins Don West, Steve Moses, and Shawn Vincent for a wide-ranging conversation based on his book “Serious Mistakes Gunowner’s Make.” Claude says, “Good decisions are made in advance,” and he emphasizes the importance of having a self-defense plan in mind before you find yourself in a potentially deadly encounter.
The Tactical Professor, Claude Werner joins Don West, Steve Moses, and Shawn Vincent to discuss his book, “Serious Mistakes Gunowners Make,” and how defenders can avoid “negative outcomes.”
Don West explains how the fundamental legal elements of self-defense fell in place in the justified Womack shooting. Steve Moses offers additional tactical lessons for concealed carriers.
Steves Moses joins Don West and Shawn Vincent to explore one of our Touchstone cases. Although it’s agreed that, legally, the defender was completely justified in this shooting, Steve offers some tips to concealed carriers on how to deal with a potential threat before it demands the use of deadly force.
Steve Moses joins Don West and Shawn Vincent to talk about whether warning shots are ever appropriate (they aren’t), the different types of defensive display and the legal risks associated with each, and the power of light as part of your self-defense tool box.
This week National Trial Counsel Don West, Critical Response Coordinator Gary Eastridge and Critical Response Team Member Rob High discuss one of the most often asked topics we deal with. When should you draw or reveal your weapon in a self defense situation? What happens when you do and the situation ends? With over eighty years of legal and law enforcement experience between them the guys take a deep dive into a complex issue.
Don West and Shawn Vincent are joined by Steve Moses to discuss the challenge of an armed defender facing a physical threat from an unarmed attacker. The conversation includes the legal risk of defensive display, the difference between de-escalation and disengagement, and how body language can communicate a defender's ability and willingness to defend themselves.
Steve Moses joins Don West and Shawn Vincent to speak with firearms instructor Tatiana Whitlock. Tatiana presents self-defense scenarios as “problems” to be solved, and she notes that a firearm is not only the only tool in the self-defense tool box.
To learn more about Tatiana visit here website here.
Mike and Stan sit down with CCW Safe Critical Response Team member Rob High to discuss some tips for personal security during the Holiday Season.
Firearms instructor Steve Moses joins Don West and Shawn Vincent as they revisit the touchstone Ted Wafer case. Steve identifies several mistakes Wafer made in handling the firearm along with the tactical mistakes that led to the tragic shooting Renisha McBride.
Don West frames the difficult legal defense Kyle Rittenhouse faces in the aftermath of the shootings in Kenosha, and Steve Moses explores the tactical liabilities of knowingly taking a conspicuous long gun into a volatile situation.
Steve Moses joins Don West and Shawn Vincent to cut through the politics surrounding the controversial Kyle Rittenhouse case and focus on the tactical and legal considerations associated with this well-documented shooting.
Don West and Steve Moses join Shawn Vincent to take a second look at the Michael Drejka case, focusing on the fundamental legal elements of self-defense: reasonable belief, imminence, and severity. Then they look at how some of Drejka’s precursor decisions turned a close call on self-defense into a manslaughter conviction.
This week Mike and Stan interview the newest member of the CCW Safe team, Rob High. Rob has just retired from the Oklahoma City Police Department where he served for over twenty five years. He is a use of force expert, defensive tactics instructor, firearms instructor and has worked in many different areas of law enforcement over the course of his career.
Learn more about our company and how we can protect you and your family by visiting: www.ccwsafe.com
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Keep up with our weekly blogs, podcasts, and interviews published weekly in the News section of our site: https://ccwsafe.com/blog
CONTACT US Please direct any inquires to a member of the CCW Safe Support team at (405) 724-8501 or via email at support@ccwsafe.com.
Be safe!
Steve Moses joins Don West and Shawn Vincent for a conversation about if and when the defensive display of a firearm can be used to counter a non-lethal threat. We’ll look at three cases where defensive display was an option, and we’ll assess the tactical and legal ramifications for the defenders.
Shawn Vincent talks to Don West about the foundational legal principles that guide our exploration and criticism of high-profile self-defense cases. Don explains how interconnected factors must be understood in context in order to mount a successful legal defense in the aftermath of a self-defense shooting.
Steve Moses joins Don West and Shawn Vincent in exploring three cases we’ve talked about before, but this time Steve provides tactical explanations on how avoidance or less lethal options could have changed the outcomes of these self-defense scenarios. This includes an illuminating conversation about OC spray.
During a time of social unrest, concealed carriers may find themselves in confrontations involving people in or around protests. We’ve seen news reports of both, including an incident in Austin, Texas where there was a tragic loss of life. Don West, Steve Moses, and Shawn Vincent explore the challenges associated with defending yourself should you find yourself in a protest -- or surrounded by one.
A recent CCW Safe article sparked controversy over a suggestion that a homeowner could have “retreated” from a potential intruder in their home and taken up a tactical position in a “hard corner.” In this podcast Don West, Steve Moses, and Shawn Vincent address the controversy, discuss the differences between a “retreat” and a “tactical withdrawal,” and reinforce the benefits that time and distance can offer a defender in a self-defense scenario -- both from a tactical and a legal perspective.
This week Mike and Stan have Trident Concepts owner and former Navy SEAL Jeff Gonzales in studio to discuss training for concealed carriers, the influx of new gun owners and the new video series that Jeff is doing for CCW Safe.
For more info about Jeff and the training his company offers visit: https://www.tridentconcepts.com/
Learn more about our company and how we can protect you and your family by visiting: www.ccwsafe.com
This week Mike and Stan have CCW Safe National Trial Counsel Don West in studio to discuss some of the self-defense law questions we have been getting in the wake of the civil unrest currently happening across the country.
Steve Moses joins Don West and Shawn Vincent in a discussion about a security guard who was murdered, ostensibly, for demanding a young woman wear a mask in a retail store. While the shooting was inexcusable, Steve points out some ways the security guard mishandled the situation and offers advice for dealing with irrational people as a concealed carrier.
This week Stan and Mike interview Shawn Vincent. Shawn is a jury consultant and author who writes a weekly article for CCW Safe detailing self-defense cases and looks at the legal results of those incidents.
Learn more about our company and how we can protect you and your family by visiting: www.ccwsafe.com
Follow Us on Social Media:
FACEBOOK: http://Facebook.com/CCWSAFE
INSTAGRAM: http://instagram.com/ccwsafe
YOUTUBE: http://www.youtube.com/ccwsafe
Keep up with our weekly blogs, podcasts, and interviews published weekly in the News section of our site: https://ccwsafe.com/blog
CONTACT US Please direct any inquires to a member of the CCW Safe Support team at (405) 724-8501 or via email at support@ccwsafe.com. Be safe!
Don West and Shawn Vincent look at the Alexander Weiss case from Rochester, Minnesota. After a traffic accident, a confrontation erupted into violence, and Weiss’ decision to retrieve his pistol from his car raised questions about his duty to retreat. The controversial case resulted in two mistrials due to hung juries before the prosecutor reluctantly dropped second degree murder charges.
Don West and Shawn Vincent are joined by Steve Moses to discuss how concealed carriers can adjust their thinking when dealing with new treats that have appeared during the COVID-19 pandemic. While the types of threats we may encounter may have changed, the laws governing self-defense have not. Here are some good strategies for staying safe and lowering your legal liability in the face of previously unimagined self-defense concerns.
This week Mike and Stan are joined by Larry Vickers. They discuss the influx of new gun owners due to COVID-19 and some things that new gun owners should consider. These include safety, training and situational awareness along with the guys talking about the biggest traps they see new owners falling in.
Don West and Shawn Vincent conclude their conversation about the Dorsey case, exploring some of the consequences the Dorsey’s face despite the shooting being declared justified, and discussing the sometimes problematic role video evidence can play in self-defense investigations.
Stan and Mike are joined this week by Andrew Branca from lawofselfdefense.com to discuss some self-defense law principles that are more important than ever to consider during the current situation in the country.
Don West and Shawn Vincent dissect the tragic but justified shooting of Gary Espinosa, looking at what the defender did right to avoid prosecution and what the defender could have done differently to prevent a misunderstanding from escalating to justified homicide.
This week Stan and Mike talk with Blake Webster. Blake is an officer with the Oklahoma City Police Department with over 30 years experience. Blake has decades of experience on the OCPD Tac Team and currently is an instructor in firearms and tactics for the department. The guys discuss training during the COVID-19 lockdown, tell some stories and discuss the Run-Hide-Fight active shooter training program.
It’s four in the morning and someone is angrily pounding on your front door, trying to get in. What do you do? That’s what Army veteran Greggory Farr had to decide. Don West and Shawn Vincent discuss Farr’s decision and the legal consequences.
Transcript:
Don West:
You know that surprisingly, there are plenty of those out there. Once they're on your radar and you start looking around, you see these tragic consequences coming out of people that make what may turn out to be a fatal mistake pounding on somebody's door, typically in the middle of the night, often under the influence of alcohol or sometimes, I suppose, combined with some other intoxicants of some sort. And then we had as a point that the tragic case in the Detroit, Michigan area, that Ted Wafer case, a young disoriented woman who had been in a fairly minor car accident, but clearly under the influence of alcohol and maybe some other things.
Shawn Vincent:
Marijuana.
Don West:
Yeah, and was pounding on the door, I suppose looking for help. I don't know if she was mistaken as to where she was or if she just was trying to raise anybody that could come help her, but she certainly gave all of the outward appearances to Mr. Wafer as an intruder, someone trying to break in the house.
Shawn Vincent:
Well, and it's terrifying. So you have one person who's intoxicated and disoriented and confused and someone else who's just been awoken from a deep sleep in their home in the middle of the night. And it's confusing for everybody.
Don West:
Yeah. You've got people a world apart trying to meet somewhere in the middle to exercise good judgment and make some decisions that keep everybody safe and often that just doesn't get there.
Shawn Vincent:
You got me thinking about my tone. When I talk about these things and write about these things -- and I think sometimes I can be harsh on the defender while we have our conversations. And I think it's in the same spirit that I'm harsh with my kids sometimes. It comes from love. Because I've seen so many of these cases were very good people, well-intentioned people are put, not because it's their fault -- these people came to their home drunk in the middle of the night and imposed on the security of their home, their family -- and they make a couple of mistakes, and you and I have tried to defend these people, and have successfully sometimes in court, but they make a couple of mistakes and it makes your job and our job so much harder, where if they had spent a little more time thinking about it in advance, what they're going to do in certain circumstances, they could have avoided it altogether or had been just so clearly justified that they never have to call us in the first place.
Don West:
I suppose that we're talking now how you can prepare for what may be a highly unlikely event, but at the same time if it ever happens to you and you've taken a few minutes to think it through in advance or to get some special training on how to deal with these scenarios, whether it's the parking lot scenario and somebody's walking up to you and you have to figure out whether it's an attacker or whether it's a homeless person looking for a handout or whether it's a crazy person, a potential rapist, who knows, but you've got those moments when you have to protect yourself, but at the same time hope that you can make some good decisions and that innocent lives aren't lost.
Shawn Vincent:
That's fair.
Don West:
And most importantly of course, is that you don't wind up committing a crime during that process, so that even though you firmly believe that you are doing what is absolutely necessary and lawful, reasonable people can sometimes disagree and if depending on where you are, what the jurisdiction is, who the police officer is that's investigating. Perhaps we should talk about prosecutorial discretion at some point. Maybe this is a good case that we'll get to talk about that. And you just wind up on the other side of this traumatic event in what we've called before the second fight, the next fight. The next fight. And that's when you're dealing with the criminal justice system.
Shawn Vincent:
I hate to see good people get prosecuted and sometimes go to jail for making what are entirely understandable mistakes, but mistakes that could have been avoided.
Don West:
And by that, I think the keyword is avoidance, because any time it doesn't happen, you've avoided it and your risk zero.
Shawn Vincent:
Yeah, the legal risk.
Don West:
That's what Andrew Branca talks about. No matter how legally or actions are.
Shawn Vincent:
How justified you might be.
Don West:
Yeah, the risk is not zero that something won't happen.
Shawn Vincent:
Or that you've misperceived one critical thing. And so let's go to Hawaii. There's this place called, I'm not going to say it right. EWA beach in Hawaii, I'm going to call it Ewa beach and there's a guy named Gregory Farr. He's 35-year-old army veteran. He lives there with his girlfriend and a daughter in this townhouse community, rows of townhouses. They all look-
Don West:
Kind of cookie cutter?
Shawn Vincent:
Remarkably similar to one another. So it's an April 15th a couple of years ago, tax day, and a sailor in the Navy, John Hasselbrink, Chief Petty Officer, 41 years old, was out drinking. He was reasonably responsible. He Ubered.
Don West:
If that's the case where, well one can assume he's probably a career military if he's still in.
Shawn Vincent:
At 41, yeah.
Don West:
Sure. And was living that life. And did I read it correctly that he was going to ship out the next day somewhere and that's why he was, kind of lighting it up that night?
Shawn Vincent:
I'm pretty sure. And so he lives in this town row, a couple of doors down. He usually keeps his door unlocked because you've got friends who come and go will crash on his sofa, and he's fine with that. So the Uber drops him off. The Uber's not pinpoint accuracy as it turns out, so he's a couple of doors down and he doesn't go to his front door, which he assumes is unlocked. He goes to the front door of Gregory Farr, who's asleep upstairs. Now Gregory, three days ago prior to this event, had hurt himself. He's in a cast, broke his ankle I think.
Don West:
So he's got some limited mobility.
Shawn Vincent:
He's hobbled. Right. And so now it's four in the morning, the terrible hour, four in the morning where all this stuff happens, and there's frantic pounding on the front door. This guy thinks he's at his house, he's trying to get in.
Don West:
So he probably goes to the door, turns the knob. What happens is not what he expects. He gets resistance, the door is locked.
Shawn Vincent:
Right. I think he assumes one of his buddies came in and crashed on the couch, they locked him out.
Don West:
So he pounds on the door, wakes him up and they let him in and he goes to bed and.
Shawn Vincent:
And they'd laugh about it and work off their hang overs the next late morning I imagine, but that's not what happens. Our guy Farr, he gets a rifle. The reports didn't say what kind of rifle he has, but it's a long gun and he goes downstairs and he's sort of covering the stairway that leads to the front door. There's a window there. You can see that there's a figure out there. It's someone he doesn't recognize. He calls out, wants to know who he is.
Don West:
So at this point he's making noise from the inside trying to get this guy's attention, asking him questions, but no sense of recognition or no response on the outside other than the continued. . .
Shawn Vincent:
The continuation of it. He's said that he had his girlfriend call 9-1-1. I assume she did. I haven't found any reports that prove that she did that. I haven't heard the 9-1-1 phone call in any of the news reports that I read on this, and that's what we have to go by. But let's assume that that happened ,or at least that he intended for her to call. So this goes on. So then we read at one point that he tells investigators, he thought his daughter was asleep up in bed, but I guess she's on the mattress downstairs. So she's sort of in between him now at the top of the stairs with his hobbled ankle in a cast and a rifle and this guy who's plowing away on his front door. And he fires.
Don West:
So as I understand his thinking, from what the reports seem to indicate, is that once he realizes that his daughter is essentially between him and the door, but in close proximity to the door, he's now concerned for her individual safety, not just the general safety of the family, but now he realizes that she is at high risk from this fella if he bursts in.
Shawn Vincent:
Right when he comes in, he's going to get to her first, and I'm the father and I'm injured I can't get to her quickly. That's a terrifying place to be.
Don West:
So that basically was the deciding factor from what you can tell-
Shawn Vincent:
So this guy's not responding. He's had it. And so it seems like he fired one shot this rifle through the door.
Don West:
And as far as we know, the door is still locked. There's been no progress made getting in by this intoxicated sailor.
Shawn Vincent:
That's right.
Don West:
But nonetheless, inside the homeowners are now armed, yet to some degree disabled, not as able to be physical, not as able to make some decisions in terms of his relative capacity physically with the guy outside and whether anybody would allow someone in just to fight them under these circumstances is certainly overwhelmed by the idea of a minor child at risk.
Shawn Vincent:
Right. We talk about immanence all the time, and I think he seemed content to call out and wait -- until he had a suspicion that his daughter might be at risk, and that wasn't a chance he was willing to take, so he fires and kills the guy.
Don West:
Why are so many of these cases that we talk about one shot fatalities. I've been a criminal defense lawyer for a long, long time and I've handled lots of aggravated battery cases, attempted murder cases where there's been one, two, three, five shots and nobody dies. And yet these innocent homeowner cases almost always one shot and the person on the other side dies. They're typically pretty decent people in their own right. They just made a tragic mistake of going to the wrong door and compounded of course by their level of intoxication.
Shawn Vincent:
Michael Drejka just happened to hit him in the heart. Could have hit him an inch over.
Don West:
The handicap parking place shooting.
Shawn Vincent:
Yeah, George Zimmerman. One shot.
Don West:
Yep.
Shawn Vincent:
This guy's an Army veteran. He understood how to handle a rifle and been trained to shoot. Gerald Strebendt had one shot; he was a veteran Marine sniper.
Don West:
Well, and that's, I imagine if you're going to assume that training played some part in it, even if it's through a door, that the notion is you shoot for the large part of the body, the center mass, and that's where a lot of vital organs are.
Shawn Vincent:
And if you hit it, then you hit it.
Don West:
And if you don't, you may very well not kill somebody, but if you do or you hit a place that's going to bleed out, then it just takes a few seconds.
Shawn Vincent:
So for whatever reason, often it is one shot as the case in this case. So he's eventually arrested on manslaughter charges. I'll add that the gun he had, I don't know all the details behind this, but he didn't have it legally, so he was arrested on weapons charges as well. And you and I have talked about this before in cases where those are mutually exclusive things. You can legally justifiably defend yourself with an illegal weapon and potentially be justified in the homicide but still face weapons charges for having an illegal weapon.
Don West:
That's right. That's happened surprisingly often actually where the claim of self-defense may very well be supported by the evidence and no charges are filed, but at the same time a convicted felon in possession would be a charge that some people would have to deal with or some other illegal weapon possession of some sort.
Shawn Vincent:
And we've seen people run for the scene because they knew they weren't allowed to have the gun and made their defense case much harder. And then some of the weird stuff happens, and we'll talk about, you called it lawyer nerd stuff earlier. We went and talked about some lawyer nerd stuff, but it's relevant because each one of these cases gets prosecuted or not differently, and it affects the defender's lives in myriad ways, but in this case, they arrest him, the charge him with a manslaughter, then they screw up speedy trial. They took too long, I guess, the prosecutor, to go through certain steps, and a judge dismisses it. But you made a distinction here. He dismissed it without prejudice, which meant that months later they pulled together this case and they came back and they charged him with manslaughter again.
Don West:
The initial criminal charge was dismissed on a speedy trial violation, because apparently the judge specifically allowed that the dismissal was without prejudice. In legal parlance, that typically means that a legal, a judicial action is taken typically a dismissal of some sort, but the key word is without prejudice. Without prejudice means that it's not fatal to the case and oftentimes that lawyers have, especially in a civil context, you can fix it. You can amend the pleading and file it again. So a dismissal without prejudice usually gives leave to take another run at it. Whereas frankly, that's a pretty novel concept to me in criminal law. I'm not really familiar how many states would allow a dismissal, especially on speedy trial grounds without prejudice, but clearly that's what happened here.
Had the judge dismissed it with prejudice, that typically means that's the end of it. Nobody can go back at another bite at the apple. A speedy trial is a notion that's a criminal procedure issue that originally is sort of designed at least, constitutionally, to keep people from languishing in jail waiting for their day in court.
Shawn Vincent:
You, the State, the oppressive government, you can't just arrest me on charges and then keep me in jail pending trial for 10 years, keeping me in prison without a trial.
Don West:
Without a determination of guilt. Sure. There's a provision in the United States Constitution for speedy trial in the day to day work of a criminal defense lawyer that would be known as constitutional speedy trial and that looks at a lot of factors including prejudice to the defendant for the delay and bringing the person to trial. Maybe they've lost witnesses or other evidence that they could have preserved had they then brought to trial more quickly.
Don West:
That can even sometimes exist in a far different context than what we're talking about here. But here we're talking about a state procedural rule, just like there's an overall constitutional speedy trial concept, that essentially focuses on due process and the fairness of the way that you were treated and the prejudice that you've encountered as a result of not being moved along in the system. And under state court, there might be very specific rules and it could be as hard and fast as a specific number of days. And if you're not brought to trial with any specific number of days, then the court has the authority to dismiss it. I remember in the old days, old days meaning 20, 30 years ago, that Florida had a very specific speedy trial rule for both misdemeanors and felonies, but for felonies it was 180 days. And if you were arrested and you were not brought to trial within 180 days, the court had the obligation to dismiss the case on application.
So you often would look at the calendar and figure out how many days actually where the 180th day fell and if you weren't brought to trial and jury selection started on that day, then you could file a motion with the court to dismiss it and it didn't matter if it was a bad check or a first degree murder. The judge had no discretion in that. And sometimes it gets kind of silly because the prosecutor would sometimes just count wrong and misunderstand when the 180th day was. That's changed now, it's still pretty rigid though because it's 175 days and then there's a window that the defendant must request the trial and then they've got a couple of weeks to bring the person to trial, but then it would be dismissed.
Don West:
Unlike other states, for example, well North Carolina is one where there really isn't any state speedy trial, so people can wait weeks or months to go to trial and not have any specific provision that guides that. Other States, when I talked to lawyers around the country, always seem to tell me a different story how their speedy trials worked and that's not to be confused -- I won't go on too much longer -- not to be confused with the statute of limitations. So the statute of limitations is basically how long the prosecuting authority can wait between the incident and the prosecution. That's typically measured in years. In most jurisdictions, a felony would be maybe four or five years, statute of limitations. And in some cases, cases that you and I have worked on, there is no statute of limitations on in most places for murder for example.
Shawn Vincent:
Which means there could be some defender who was involved in the self-defense incident and the police decide not the charge for some reason, but he's never explicitly exonerated, so he lives his life month after month, potentially year after year, with this specter that a prosecution could happen at some point.
Don West:
Yeah, a lot of those cases just kind of hang out there because there is no statute of limitations, the prosecutor doesn't have to finally decide and frankly there's pretty good reason in some cases, not the ones we're talking about, but we know all those cold cases, right? Technology changes. There are people that committed murder 30 years ago that are now being successfully prosecuted because of DNA and these genetic databases and things that. . .
Shawn Vincent:
The Golden Gate Killer.
Don West:
Yeah, there you go. They're able to identify people there was simply not enough reliable evidence on before.
Shawn Vincent:
I bring that up, because one of the, you talked about the next fight, right? One of the points of our discretion and our podcast is to help the members understand just what comes or what can come after a self defense shooting. And what we'd like to think is that the cops show up, they look around and say, "Oh yeah, he was trying to break into your house. Congratulations on being a great citizen. You're fine." And life goes on. But that's hardly ever the case. They're going to come, they're going to treat it as a homicide. Sometimes they clear these pretty quickly, other times they don't. And then the defender's left in this limbo for days, weeks, months, years sometimes. Usually an arrest comes within days or weeks, but not always. And then there's, depending on where you live, different speedy trial clock, your lawyer will probably opt to voluntarily to spend that to take the time they want to get the experts they need to. . .
Don West:
Yeah. In most circumstances, if there's a rigid speedy trial rule, it can be waived or told because of something that the defense wants to do to get expert review of evidence or that sort of more investigation.
Shawn Vincent:
That's why you have a year or two before you get the trial.
Don West:
Yeah. You know your point is . . . I've personally been involved in a case that's now a year and a half old and there's been no prosecution to note, no clear evidence that there ever will be, but there's been no absolute dismissal with prejudice. You know we talked about with prejudice if the case is dismissed with prejudice. . .
Shawn Vincent:
There's no deep sigh of relief for this guy.
Don West:
No, and then there's another case I'm personally involved in that is almost four years now since the incident and once again, well there's no interest apparently in prosecuting, and the longer the time passes I think the more comfort one can take that there won't be, but there's no guarantee that it won't be picked up at some point in time.
Don West:
Now this is not the kind of case where DNA and advances and forensics are likely to change the shift. It's a self-defense case and I think the facts are pretty well known and we can be confident because no charges were filed, that it was thoroughly assessed and an intelligent and informed decision was made. But no guarantee that, who knows? You know that's how, frankly, you hear cases all the time where after five years or 10 years, a suspect in a case, in the traditional typical kind of murder case where they can't prove who did it, they know it was a murder. It's clear that it was a criminal murder, but they don't know for sure who did it or the suspect. There's just not enough evidence. There'll be a statement made, there'll be new forensic evidence or something that will connect the dots and all of a sudden there.
Shawn Vincent:
There's a case. So this guy Farr, he had sort of a, the case was dismissed at one point. There are several months, then it was reasserted. The reporting kind of goes cold on this. At one point there's going to be a trial in December. I don't think that trial happens. I couldn't find any reports on it, so it was continued or the likely case of it or dismissed. But that guy spent a long time and wondering what was going to happen to him. And a lot of that has to do with some of the choices he made during this. Well, I guess there's, there's one critical choice here. If we're going to talk about the lessons learned from the case and that is he chose to fire against the intruder before the intruder had gained access to his house. This is, we were talking about the enemy at the gates.
We talked just earlier today about a guy who went out to meet an intruder in his yard. We've talked about the Ted Wafer case where he opened the door to the intruder on the porch. We talked about a similar case where a guy had two people breaking into his house. He knew who they were. He knew they were there to get them and he fired through the door and killed both of them. He was found justified probably because he knew once he got into the house, he knew what their intent was.
Don West:
And he was outnumbered and apparently the police were pretty satisfied that was good. That was true.
Shawn Vincent:
But our general advice was you probably should never shoot through a closed, locked door. We talked about a case in Cincinnati where this mother of five, her abusive ex boyfriend came, was raging on the front yard and trying to get in, and he finally pulled out the air conditioner, the window unit, and it was only then when he tried to get into the window unit that she fired and ended up wounding him and just disabling him. She was clearly justified, but it was that moment when that threshold was to be crossed. The breach had been made and Farr shoots before that moment.
Don West:
So we touched upon this in our conversation, this notion of prosecutorial discretion, the discretion that a prosecutor has in any criminal case, but I think especially in these kinds of cases. If they don't have clear marching orders from above that they always do something when these these things are present and the prosecutor's going to, after looking at the case package, you want to talk to law enforcement, they may reach out independently to talk to witnesses. They have the authority to do that. Of course, they have the benefit of the forensic reports. A lot of them the police don't have, at least not at first and they can sort of piece this together. They will scrutinize and scrutinize and dissect and turn inside and out any statement that the accused made, the shooter made, to see if it matches up with other witness statements, but I think maybe most importantly if it matches up with the physical evidence. They'll take a look at gunshot residue, trajectory. In this case they might very well look at the door jamb. Was there damage to the door jamb? What kind of door was it? Is it steel or is it thin wood that could be easily smashed down?
Shawn Vincent:
Right, in Ted Wafer they brought in the screen door that was between him and Renisha McBride to try to decide what damage was caused by her that night.
Don West:
Sure, and they can do this in the comfort of their office with the quiet and a time to reflect. Nothing like the decisions that were made of course at the scene.
Shawn Vincent:
Yeah, the life or death imminent decisions.
Don West:
They'll take a look at his statement when he said, "My daughter was there in between me and the door." And see if that really holds water. How old was she? Could he have said to her, get out of the way. Come here, go upstairs. Could he have done anything to have increased her safety before he used it as a justification for shooting through the door? He said, as I recall, that he could see the face of the sailor through the window in the door and that he was yelling at him and showed him the gun and one would think just logically, the prosecutor certainly will think this through, it's not a home invasion robbery. It's not somebody bursting into your house to hold you at gunpoint to steal things from you typically, if they bang on the door and yell and want you to come open the door. They may be crazy. They may be drunk, but it's not likely that they're part of a home invasion team.
Shawn Vincent:
If it's a home invasion robber, they'll knock and say, "Hey everybody, we're here to rob you. We're going to barge in 10 seconds."
Don West:
"Please open your door."
Shawn Vincent:
"Get ready for us. Get your shotgun ready." And yeah.
Don West:
There apparently wasn't any clear attempt to kick the door in. I'm sure that would have been mentioned if there'd been evidence to show that. So even though Mr. Farr had seconds to make these decisions, they're going to be looked at over the course of days and weeks and months, in this case a number of months. Speedy trial and then refiled. And there may be some critical evidentiary aspects. There may be some part of his story that doesn't fit some of the other known facts and they're really wrestling with how to go forward. The prosecutor has to feel bad for this guy, probably doesn't want to prosecute him. Hawaii, I don't think, necessarily, is the best state to be in when you're dealing with the. . .
Shawn Vincent:
As a defender. Yeah.
Don West:
You've got all that stuff.
Shawn Vincent:
And the fact that he didn't legally own the weapon he used -- it doesn't help.
Don West:
Does not help.
Shawn Vincent:
We talked about how they're mutually exclusive charges, but it doesn't make his judgment in the self-defense case look better.
Don West:
And the fact of who you kill really shouldn't factor in either. Every life is worth the same, I guess would be the statement. But as a practical circumstance, he killed a 41 year old Navy veteran . . .
Shawn Vincent:
Active service.
Don West:
Who was about to ship off, who was serving his country, who was just blowing off a little steam before he headed out to protect us.
Shawn Vincent:
Freedom and democracy.
Don West:
Yeah. And that's very compelling and makes it even more tragic.
Shawn Vincent:
And the victims have an influence on the prosecutors, don't they?
Don West:
Sure.
Shawn Vincent:
I mean the prosecutors make their decisions, but if it's the Navy saying, "We want you to get this guy." I'm not saying that they said that in this case, we don't know. But if it's a compelling -- the victim has somebody, an uncle in law enforcement and he has some sway -- they're sensitive. They're advocates for the victims.
Don West:
They are, and the family of the victim, frankly, as you know, it sounds kind of crude almost, but how much noise the family of the deceased makes can impact how the decisions are made and the prosecution. Are there legions of people in protests or are the family members that are really focusing the attention on this case and maybe the media attention as well?
Shawn Vincent:
You saw that in Ted Wafer too that the family was out there protesting every day until they finally filed charges.
Don West:
And I know there are some cases, you and I have been involved in them, where the prosecutor's feeling so much heat, even when they think they probably don't want to file criminal charges, they either do anyway, which is sort of succumbing to the political stuff or in a lot of jurisdictions, even when they don't have to, they'll punt and put the case before the grand jury. I've seen that several times where the prosecutor has the authority to file the charges, but they decide it's kind of a hot potato.
Shawn Vincent:
Like Ferguson.
Don West:
Sure.
Shawn Vincent:
Ferguson, Missouri where the kid shot the cop.
Don West:
Other way around.
Shawn Vincent:
Yeah, the cop shot the kid, right. I think the prosecutor wanted to null pross that, but he sent it to the grand jury.
Don West:
And the grand jury cleared, and it's still controversial. So there are those cases where the prosecutors under lots of pressure from any number of angles and that's assuming true motives. You still never know when there's a political pressure somewhere because the boss wants to get reelected or you want to run for office as a prosecutor and in a close call you may make the personal choice. Who knows. I'm not . . .
Shawn Vincent:
Suggesting that any of that's happening here, but it's funny it’s been dismissed and then reappointed.
Don West:
Yeah. But this is another one of those examples of just a tragic outcome and we spend so much time and we wring our hands. Could something have happened that would have changed the course of this, either for the homeowner, frankly, for the deceased. It was what it was. He was just drunk and out of his mind a little bit and confused. And the homeowner . . .
Shawn Vincent:
Well, we've talked before about this window of justification, that the window opens and it closes and it's only in this very specific frame work of time where use of force is justified. And we've seen cases where they fire a little bit too soon. This is one of those cases. It very well could have been 30 seconds from then the door splinters, the glass breaks, and all of a sudden now the windows open, literally opens, and then we've seen cases where like in the pharmacist's case where the perpetrator leaves and there's a final shot after the fact. Once the threat was neutralized.
Don West:
That's like the person in Oklahoma city where there are shots fired after the robber is incapacitated.
Shawn Vincent:
That's right.
Don West:
And that's clearly viewed by the prosecutor, a guy who was viewed as sort of the hero initially by the media for stopping these armed robbers, winds up getting prosecuted and convicted of murder for shooting the robber after the robber was already down.
Shawn Vincent:
Yeah. And so I think you have a case here, a guy who was almost justified and he's facing prosecution because he fired too soon. And the lesson I take from it is if I ever find myself in that circumstance, I want to be thinking about that window. If someone's calling 9-1-1, I'm thinking tactically. Where am I? There's where my daughter is. Has the window opened yet? Is that threat imminent and what would it take for that threat to be imminent? And hopefully I'll have the peace of mind, state of mind and the judgment to wait for them. But that's like I said at the beginning -- we talked about tone -- is why I get so passionate about these cases, because I can see myself there and how seconds can make the difference.
Don West:
Obviously easier said than done. You would think, well the daughter goes upstairs, he retreats further up the steps maybe with still a view of the door and the gun ready and if he comes through the door and still seems to be aggressive, maybe that's a better time. It certainly would be much more justifiable when a prosecutor is sitting in the easy chair trying to decide whether to prosecute this guy or not.
Shawn Vincent:
Yeah, tough case.
Don West:
This is one of those as so many of them we talk about that we know they're awful, they're absolutely awful, but are they lawful? And this is one that may very well be awful but lawful, but the fact that he's being prosecuted suggests that there are at least some of the authorities believed that he had other decisions he could have made, and that the decision he made to fire the gun, to take life as a consequence of it were simply not supportable under the law of self-defense.
This week Mike and Stan discuss all things COVID-19. From being prepared to how to deal mentally with a stressful situation. CCW Safe Content Manager Justin Collett joins in as well.
This week Mike and Stan interview Las Vegas, Nevada based attorney Andrea Luem. Andrea has great deal of experience with self-defense cases. She talks about what is important for a defense and things that people should consider if they are going to carry a gun for self-defense.
Don West and Shawn Vincent explore cases where homeowners defend against intruders. A Shot in the Dark focuses on the case of 72-year-old James Meyer who caught an intruder breaking into his shed. While the initial shooting may have been justified, his actions after the fact put him in a difficult legal position.
This week Mike and Stan sit down with CCW Safe National Trial Counsel Don West to discuss the Amber Guyger case and what are some of the things that make a defense attorneys job harder in a self defense case.
Video version and transcript available at ccwsafe.com/news
This week Mike and Stan interview long time OKCPD Officer Bill Patten about the importance of situational awareness. Mike and Bill were partners back in the day and tell some stories of their time working the streets in Oklahoma City.
Transcript in process.
This week Stan and Mike interview Rob High of the Oklahoma City Police Department. Rob is a Use of Force expert and long time trainer for OKCPD. He discusses use of force examples, the importance of situational awareness, the 21 foot rule and other topics of interest to concealed carriers and armed professionals.
Mike and Stan are back from Vegas and talking about SHOT Show 2020 then interviewing Jacob Pauslen the founder of ConcealdCarry.com. Jacob talks about their new free series of medical videos for concealed carriers and how people can watch them.
Video version of the podcast: https://youtu.be/o6YsCcyh7n0
Transcript of the podcast is being processed and will be posted when it is available.
Don West and Shawn Vincent discuss the extraordinary Amber Guyger case in which an off duty police officer mistakenly enters the wrong apartments and shoots the occupant thinking he was an intruder in her own home. The case tests the absolute limits of the Castle Doctrine and serves as a warning for concealed carriers to check their assumptions when making decisions in potentially threatening situations.
TRANSCRIPT:
Shawn Vincent: Don West. How are you doing?
Don West: Hey Shawn. As always nice to talk with you.
Shawn Vincent: Yeah. So when we're recording this right now, we're about a week and a half away from my 43rd birthday.
Don West: It doesn't sound like such a big deal to me since-
Shawn Vincent: Yeah. You're a little past 43, right?
Don West: Yeah, but at the same time, I'm thinking back to those days where I was in my life and my family and my career. And you are, I guess probably about halfway through by now, don't you think?
Shawn Vincent: Yeah. I think judging by my diet, I think I'm a little over halfway through for sure.
Don West: You once described yourself as mid-life. I guess if we do the math, 86 would be a pretty good life. I think if I make 86, I probably [crosstalk 00:01:17].
Shawn Vincent: You can say you did it. When I met you, I was nice mid 30s. I think at 43 should become mid 40s. I'm early forties now. One more year. I'm mid 40. Someone the other day told me that I looked spry today, which I think is-
Don West: Well, that drips with something, doesn't it?
Shawn Vincent: No one ever tells someone in middle school, "You’re looking spry." That doesn't happen so.
Don West: Well. I once heard a lawyer talk about other lawyers in terms of experience, whether if they had 20 years experience, they had 20 years experience or whether they had one year of experience repeated 20 times.
Shawn Vincent: Sure. I like that.
Don West: I have to think, knowing you, as long as I've known you, that you have continued to build on that life experience and provided a positive and grateful environment for your children and developed a nice little niche career where you're doing good things for people in bad situations. And from my perspective it looks like it's all coming together.
Shawn Vincent: Well, I like that a hell of a lot better than I like spry, so thanks for that. Well, can we say seasoned? Let's go with seasoned.
Don West: Yeah, I'll go with seasoned. I think that's euphemistic enough.
Shawn Vincent: Perfect. Well, hey, we have a case that I've been dying to talk to you about and it happened out where you've been spending some of your time in the Dallas-Fort Worth area.
Don West: Yeah, that's right. It was all the news for quite a while. It's the almost infamous case of Amber Guyger, the police officer who shot and killed a young man by the name of Botham Jean.
Shawn Vincent: Sure. She was an off-duty police officer, right?
Don West: She was. This day that this happened, I believe around August, September of 2018, I think it was just about a year before the trial. And not only was she off-duty, but she had worked I think a double that day. At the time she went home at the end of her shifts, she was in full uniform, equipment belt and all of that stuff.
Shawn Vincent: Right.
Don West: Going home after a long day.
Shawn Vincent: Right. So she lived on the fourth floor of this apartment building and it's got an attached parking garage. And Botham John, he lived in the same apartment that she lived in one floor up. So-
Don West: Yeah, I think that's right. It doesn't matter which floor exactly but that's exactly what happened. She went to the wrong floor thinking she was going to her apartment.
Shawn Vincent: I've been in parking garages where unless there's the big number written on the wall in the right spot, you don't necessarily know what level you're on. They all look about the same floor to floor and I've been in a hotel where you get off on the wrong floor and it takes a little bit before you realize that you're not in the right spot. So I can imagine an apartment building where if it came in from the garage on floor five, it looks a lot like it does on floor four.
Don West: Oh, sure. I think everyone's probably had that experience. I have a tendency to do that with cars. Walk up to the wrong car, especially if it's a rental car. I wind up being distracted because of whatever it was that took me there and walk up right to the car sometimes lift the handle to get in, only to realize that I'm off a row or two. And I just, without thinking walked up to somebody else's car and from their perspective, especially if they had been sitting inside, would have thought I was trying to break in the car.
Shawn Vincent: Yeah. And I rent cars enough to where sometimes I've literally forgotten what car I rented and if it weren't for the little fob that will click to make it blink, I'd have no idea what car to get into. So we've all made mistakes concerning orientation. Where you are and being confused about that. And in this case, Amber Guyger came in the wrong floor, she goes to the wrong apartment. It's the one above where she lives. It's in the right spot it's just one floor up too far. She doesn't notice that the floor mat out front is different. There's something wrong with Botham Jean's door to where it didn't clasp properly. So she was able to open it without a key.
Don West: Yeah. I think the way these doors worked... The sense of it I had was it was a magnetic key like a hotel room key.
Shawn Vincent: Okay.
Don West: In fact people testified in the trial that the doors didn't always close completely. So it was entirely possible that from the inside you'd think your door was closed but unless you pushed it that last half inch, it would be sitting there slightly ajar. And from the outside, I don't know if there was a light or what might tell you like there is hotel rooms, but in fact in this case there was testimony that she knew that the door was unlocked. So it wasn't that she was able to get in the wrong door using her key it was that the door wasn't latched completely so that effectively it could just be pushed open. So that was one of the facts that the prosecutor used in the case to explain why she should have known something was up, or at least that she was in the wrong place because of that. The floor mat you're talking about became significant in that it was symbolic. It was bright red. So people attending the trial that were sympathetic to Botham Jean wore bright red clothing and other paraphernalia and such to indicate their support and also to reinforce the idea that in their mind it was a ridiculous claim that she didn't know she was in the wrong place because she didn't have a bright red door mat, and he did, and she was standing right there on it and crossed it when she went in the apartment.
Shawn Vincent: Right. So she goes in the apartment and, if we believe her, she thinks she's walking into her apartment, and there's this guy there. From the accounts that I read he was apparently eating ice cream and watching football but she doesn't necessarily see it that way.
Don West: I don't know exactly what she said she thought was going on other than she was convinced she was entering her own apartment and she never wavered from that. And I think that ultimately that was accepted, that she had made a mistake and that she had gone into his apartment fully believing that she was going into her own. After that, it becomes pretty confusing because the layout in terms of furniture isn't the same. I'm assuming that she would have known whether she left the TV on or not when she went to work that day. I think a lot of people said, "Why would she go in, even if it's her own apartment, if the door isn't latched, doesn't that tell anyone much less a trained police officer that there's something different?"
Shawn Vincent: Something's wrong here.
Don West: Yeah. And of course the idea that being a trained police officer and having her equipment and tools of the trade, including weapons and such, but having the tactical training and experience in these encounters on the street, why would she make the decision to go in at all rather than recognizing something was amiss but not even knowing what it was, assuming it was her own apartment why wouldn't she call for backup? Why wouldn't she maintain her position of relative safety until she had some people with her that could figure it all out.
Shawn Vincent: Because instead what happens is Botham Jean gets up and comes towards her, right? She testifies that she was giving voice commands, "Put your hands up, what are you doing here?" That sort of thing.
Don West: Yeah. And it's obviously impossible to know whether he was confused or could even hear her, but her testimony was that he came in her direction and from her perspective, he wasn't obeying her commands.
Shawn Vincent: Right.
Don West: And of course the distance closed rapidly. He must've been incredibly confused and wondering who that person was and of course why were they in his apartment and what was their intention. Whether he perceived it as a threat, who knows?
Shawn Vincent: Yeah, we'll never know.
Don West: There had been a neighbor over there earlier and maybe the door was even left open on purpose. I don't know any of that stuff, but it must've been incredibly confusing for him. And now we're looking at his perception and how that affects his behavior and then how his behavior affects the perception of Amber Guyger and then of course her response, which tragically was to point her gun at him and fire twice. One I think missed, but the other penetrated his chest, I think pierced his heart and an immediately-
Shawn Vincent: And then that's it.
Don West: Mortal wound.
Shawn Vincent: Right. Then what happens immediately afterwards becomes a point at trial as well. There's video of her freaking out while there's first responders there, there was some hay made that she never seemed to try to render any aid to the guy that she had just shot. She obviously quickly realized that she was in the wrong apartment and that this was a horrific mistake.
Don West: Well that's an interesting observation because that has nothing to do with the lawfulness of her act of shooting him. We'll talk about how all of that plays out. Whether or not she immediately rendered aid has to do, I think with the way the prosecutor could paint her maybe as being callous or uncaring about what she had done combined with some of the things she said on the call about losing her job and all that stuff seemed to suggest she was more worried about herself than she was-
Shawn Vincent: Sure. Well, often-
Don West: Than the guy that she shot.
Shawn Vincent: Often a second degree murder charge -- especially in Florida where we've worked on some cases together -- the second-degree murder charge implies a reckless disregard for human life and if there's any chance to provide aid to resuscitate somebody and you don't do that, that helps paint a picture of someone who has disregard for that life.
Don West: We've come across a couple of cases where the prosecutor exploited the idea that no aid was rendered and tried to impute some meaning to that.
Shawn Vincent: Sure.
Don West: And-
Shawn Vincent: We just talked about the Drejka case and instead of trying to help the guy or express concern for him, he was wandering around letting people coming up at the store, letting them know he had just shot somebody. A weird reaction that was.
Don West: We know being involved in something like that may make you act in a different way than you would even if you were thinking it through. But certainly the perception others have of you becomes pretty important and frankly, I've seen cases where the response to the shooting was so immediate and so positive in an attempt to get aid that the prosecutor commented on that in making their charging decision, that they thought that the person did everything right afterwards and it impressed them about the way they viewed the case
Shawn Vincent: We talked about Zach Peters and he didn't necessarily render aid but indicated on this 911 call that they were still alive and that you better get here quick. The implication being that he had some concern for whether or not they'd be able to survive that episode.
Don West: Our advice has been, even though it may be the last thing you want to do to help the person that you firmly believe just tried to kill you but for your use of deadly force would have been dead, the last thing you want to do is reach out and try to provide medical assistance. But we have specific examples we can talk about plus the idea of being able to show that your conduct was not rooted in anger and malice but rather was a response to the threat and that once the threat is over, you will, as any human being should try to mitigate the situation.
Shawn Vincent: Right. Because the point-
Don West: Your goal is not to kill the person. Your goal is to neutralize the threat. Stop the threat.
Shawn Vincent: That's right. And that should be the attitude from the beginning to the end. And all the actions that you take should indicate that respect for life. Otherwise-
Don West: In a case that we're talking about like that when the prosecutor is looking for any opportunity to look for evidence that will support their theory. Now their theory could be any number of things but in this case the theory was that what she did was not reasonable and that even though the law may have favored her, notwithstanding the fact that she made a mistake, her conduct should be viewed by the jury as being unreasonable and then set about explaining why and how at different points in time throughout the entire scenario and the fact that she seemed more focused on herself and the fact that she would lose her job than trying to render immediate aid was just one thing that piled on a lot of other things that happened long before the trigger was pulled.
Shawn Vincent: That's the cherry on top of the pie here, the meat is this whole thing that... And we've never encountered a case like this where someone... She essentially broke into someone else's house and then shot them and is claiming self-defense. It wasn't breaking and entering, but she went in uninvited to somebody's house and shot them in their living room and then makes a self-defense claim. That sounds crazy.
Don West: It does sound crazy in the sense that most people that don't truly understand self-defense law and what it is that become the critical turning points in a self-defense case would think that all you really needed to know was that she went into the wrong house and shot an otherwise law-abiding citizen and that nothing else really matters. Well, in fact, that's not the case. That notwithstanding some of the things that we'll talk about that help shed some light on whether her actions ultimately were reasonable. Legally, you are allowed to make mistakes. It's really the perception of the threat more than the actual threat that becomes the critical issue.
Shawn Vincent: Right. So if the jury-
Don West: So the fact-
Shawn Vincent: If the jury really believes that you've made that mistake in perception, then they're supposed to accept that as the reality or the perceived reality. And then under that set of realities then decide whether it was reasonable. So under your misperception, was your action reasonable? Even if you're wrong about that first assumption.
Don West: That's exactly right. The threat doesn't... And the jury instructions say this, the threat doesn't have to be actual, it's the perception of the threat. So the prosecutor had to go much further than just showing the jury that in fact she had made a mistake, they had to show that the way this thing played out, her mistake was unreasonable and that there were lots of places along the way where she should have realized her mistake and you put all that stuff together overall the actions were unreasonable. And once the-
Shawn Vincent: So let me-
Don West: Go ahead.
Shawn Vincent: Let me ask you about that. So if we're going to operate with the assumption that she thought it was her house and that the jury has to, if they believe that's true, judge her based on that, then let's make a more controversial scenario. You come home from a double shift, you're distracted, you're tired, it's dark, you walk in your front door and then there's a stranger there who gets up and starts moving towards you. You're a concealed carrier, you're in your own home, someone's obviously entered without your permission, are you justified in shooting them then?
Don West: It may take a few more facts but the general sense is yes. Especially if you know there's no way they got in there by consent.
Shawn Vincent: It's not potentially like a friend of your son's or it's not the bug guy.
Don West: Well, I can tell you there are lots of cases. Tragic cases. You'll read about them regularly if you just pay attention -- about people being home asleep, hearing a noise, getting out of bed, taking a gun into the living room or to the kitchen and finding somebody and shooting that person dead, only to realize after the fact that it was a kid coming home from college or a relative that came into the house. So they were clearly no actual threat, but the fact that they entered, from your perspective without consent, essentially a breaking and entering idea, especially in your home, there are presumptions that if somebody enters the house without permission, there's a presumption that they're there and a threat.
Shawn Vincent: Right. So she's got that on her side.
Don West: The law is on her side, even if she's making a mistake. And I think that was somewhat controversial in this case because I think the judge ultimately agreed that she was entitled to the Castle Doctrine defense, even though she wasn't in her own apartment and obviously she was the in the wrong spot. So that was controversial and I think a lot of people were afraid the jury might use that as a technicality of some sort and acquit her, notwithstanding the clear indication that she was making a big mistake about the whole thing from beginning to end.
Shawn Vincent: Right. So if the Castle Doctrine could have or should have applied to her in that case, then now I want to connect the dots about how she gets a guilty verdict because she was found guilty of murder in that case from shooting an intruder in her, quote on quote, her house. What she perceived to be her house. So one thing I look at is even though the law often allows you to assume that someone who is in your house uninvited is a threat, whether or not they actually are a threat from a perception point of view, still makes a difference. And we've talked recently about the idea... We were talking about Marissa Alexander. She left a confrontation in her house and went into her garage. She was not followed but she got a gun and then she went back into her house and re-engaged and that was a problem in her case. So if you walk in your front door and you have the option of turning around and leaving or going further into your house and confronting somebody who's there uninvited, does that change the scenario when you're looking at the Castle Doctrine and the duty to retreat that's waived by the Castle Doctrine?
Don West: Well, I think the focus shifts that notwithstanding the legal right to take certain steps that the law would protect because of the Castle Doctrine, no legal duty to retreat. And in many jurisdictions, the presumption that someone who has entered the home uninvited is a threat and that your fear would be reasonable, that's not the end of the inquiry. And in this case, the prosecution focused on all of the little things that in combination and when put together the so-called totality of the circumstances test that we've talked about before, whether overall her actions were reasonable. And you can break that down into mistakes of fact and maybe mistakes that shouldn't have been made and why she didn't know where she was. Then you talk about the tactics or the strategy of the decision making and why she did what she did under those circumstances. And when you start stacking that one-on-one on top of it and then you compound that of course by the fact that she was wrong, that she shot an innocent person, I think the jury had a different perspective than you would have had it been in your own home where you made an innocent but tragic mistake shooting somebody that wasn't in fact there to harm you like a relative or a drunk neighbor that wandered in.
Shawn Vincent: Sure. And you've coined the term forgivable subjectivity for situations like this. When it's your home or you're perceived to be in your home, or if you have the protection of the Castle Doctrine, the law affords you a few mistakes, even if you don't do everything perfect. There's this forgivable subjectivity. There were the deciders of fact can lean in your favor pretty easily, but I think the fact that it wasn't her house, even if legally the standard is Castle Doctrine applies, she's lost a whole bunch of that forgivable subjectivity, right? She's got a long road to claw back at and then you throw in the fact that he was unarmed, that she had an opportunity to just walk back out the door that she had just come in, the fact that she didn't attempt to render any raid after-the-fact; those are little things that push this forgivable subjectivity back to the point of no return.
Don West: Yeah. Let's talk a little bit about some of the specifics that formed the basis of the prosecution argument that made her, in their view, the conduct unreasonable, which meant that she really shouldn't be given the benefit of the doubt. I think that's what we're talking about.
Shawn Vincent: Right.
Don West: To some degree the forgivable subjectivity notion is that if you do most things right and you do them in good faith and you do them consistent with the law, even if you are wrong about some things you'll get the benefit of that, especially if it's in your own home. So setting the stage just a little bit more, I think we had talked earlier that she had worked a double shift, that she was in uniform, she was coming home, there was a different color mat in front of her door. It's certainly and I guess a different apartment number, but it's certainly explainable. I'm satisfied that you could miss that stuff but-
Shawn Vincent: I don't even know what our door mat looks like.
Don West: Sure.
Shawn Vincent: Don't tell my wife, but-
Don West: But then the door is unlatched. So that should've been a real big clue. And I would think someone would want to look around a little bit more than not necessarily even thinking you're in the wrong place but looking for what else might be out of the ordinary or amiss.
Shawn Vincent: So you come home and your door is open, you're going to look around like, "What's going on here?" You're going to be extra perceptive is what you're saying.
Don West: I would think you'd be very vigilant at that point because now this is something that jolts you awake. Now, in your end of the day automaton response. How many times have you driven home and you certainly can't remember the route you took or those things.
Shawn Vincent: So whatever is distracting you, now you're shocked out of that and now you're in the moment because your door's open.
Don West: I would think so. I think that's a reasonable interpretation.
Shawn Vincent: Especially if you're a cop. Yeah.
Don West: So there were a couple of other things going on, too, as I remember some of the testimony and I watched quite a bit of it that first of all, she'd only been there a couple of months so she's not going to be as familiar with the layout as people that lived there a long time, but it was my understanding that she had a dog and that the dog was boarded or being kept somewhere because maintenance was supposed to come through at some point in time. I don't know if it was that day, but if you put your dog up, you would know two things. One, you would know your dog wasn't there, so the dog wasn't at any risk if that's what you were concerned about. And then the fact that you boarded the dog because maintenance was going to have to do some stuff, then you would maybe not be quite as surprised that the door was unlocked or open, but you would react to that, I would think.
Shawn Vincent: Sure.
Don West: Rather than think. So that would have been another opportunity to think that maybe if somebody is inside, they're specifically there to do harm or even to steal things. And the idea that... Well let me characterize it this way. She is trained and prepared to deal with threats and violence. At the same time she's also prepared and trained how to not do that without incurring greater risk and you call for backup. If you're in a situation that's not urgent, that you don't have to take immediate action and you don't know what's going on or how big the risk or the threat is, you call for help. So the prosecutor really harped on that. Why not just call for backup? The police station was only a few blocks away. You stay outside where you're safe, you call for people and then you go in and deal with it. So while it wasn't specifically said, what struck me about that is why would you go in there when there's nothing really to protect? It's just your stuff, there's no people in there, whoever it is that's in there is not there specifically to attack you because you're on the outside. So why specifically go inside knowing you have to confront whatever it is rather than just waiting outside and-
Shawn Vincent: You're going from a place of relative safety to uncertain danger.
Don West: Yeah. And how many times have we seen that? So she goes inside with the expectation of confronting whoever it is and she may not have known or even really suspected that it was an intruder at that point. I don't know what she really thought that wasn't clear, but she did make the decision to go on in. And I think the prosecutor pretty reasonably said how unreasonable that decision was.
Shawn Vincent: We've talked over and over again in these cases that the decision to pull the trigger by definition has to be imminent fear, right? And if it's imminent, there's no time to think twice about that decision. It has to be done right now. Imminent means right now, you told me once, right? So we have this conversation that we've had a few times about the choice before the choice and almost all the cases we've found there's been escalation and the shooter makes some choices before that critical moment where they pull the trigger where they could have gone a different way. And in Guyger's case, that's clearly her decision to continue into the apartment after she knew that something was wrong. That was where she really had the most discretion to change how the scenario went.
Don West: Yes, exactly right. So she would then, by making the decision to go in and confront whatever it was that was inside, cross that line where she had to do it. Now I'm not saying she had to shoot somebody but once she made that decision to go inside, she had basically decided she will handle whatever it is.
Shawn Vincent: Yeah.
Don West: And when she didn't really have to do that, she had lots of other options there.
Shawn Vincent: So that decision was unreasonable from the deciders of fact point of view.
Don West: I think so. You couple it with all of the other little things where the prosecutor reinforced the notion that she should have known she wasn't in her place. There are too many things going on for her not to have realized it. If she hadn't been distracted with text messaging, if she hadn't been tired, perhaps -- but nonetheless the prosecutor exploited everything that they could to show that she wasn't focusing, that she was distracted, that she really wasn't paying attention, that any reasonable person would have given these situations. And then I suppose from my perspective, the decision to go in and confront is a one-way street at that point. You go in and you have to deal with it. Now, I think what's interesting maybe for our listeners is we have, excuse me, no doubt lots of listeners that if they hear a noise in their backyard are going to get their gun and go out and figure out what it is. And just like when Amber Guyger went into what she believed be her apartment with her gun, with the expectation that she would confront whatever it was that was inside, she wasn't breaking any law. She was completely allowed to do that as a citizen and certainly as an off-duty police officer. So it's not that she made a critical illegal decision. She simply made, I think in hindsight, what was a critically bad decision. A decision that she didn't have to make that had the risk of increasing her own danger but more or less, as we've talked about before, when you talk about the choice before the choice, you make the choice that forces your hand and you hope it's going to turn out okay, you hope that you're going to come up on the winning side of it but nonetheless, you make a choice that forces a hard choice. And in this case how much more wrong could it have gone? Her life is effectively ruined, Botham Jean is dead, a promising, universally loved young man, a young professional who had a loving family and peers, it's just-
Shawn Vincent: Just the ultimate tragedy.
Don West: Yep, sure is.
Shawn Vincent: So there were other things that we got brought up in trial that yeah, if we're going to push this forgivable subjectivity, the prosecutor tried to make her look like a bad person. They tried to make her look like a racist. She was white, Botham Jean was black.
Don West: I think that the prosecutor, knowing how delicate a balance all of this is in terms of the jury's perception of what happened, were taking the opportunities that they had to exploit the weaknesses in the character, weaknesses in the history, in the background, taking events in Ms. Guyger's life and, rightfully or wrongfully, I don't know enough about it to suggest that there was any real evidentiary value to this other than what seemed to be a pretty clear attempt to dirty her up. I don't think anybody could credibly claim that race played a part in this, even though the media focus was oftentimes race-based and only because another unarmed black man is killed at the hands of a police officer. So that's a narrative which percolates throughout the news these days.
Shawn Vincent: That definitely grabs national headlines.
Don West: Yeah. It's a round peg, square hole scenario. I don't know anybody would truly suggest race played a part of it, but it was an aspect of this that was exploited by the lawyers on behalf of the family and certainly the prosecutor appreciated whatever value some inference of that might have and took full advantage of it to the extent they could. Whatever lesson there is, there only is what we've said on and on and that is that whatever you have out there in your past, whether it's social media, or text messages, or off-color jokes that are offensive, can and -- if there's any way for it to come back to haunt you -- it will. By all accounts, Amber Guyger was a decent person who had done a good job as a police officer, who had done good works in the community, was well-liked and well-respected but through this sequence of poor judgment, bad decisions, maybe being a little bit too gung-ho, dealing with whatever it was on her own, instead of getting the backup, set the stage for this tragedy.
Shawn Vincent: Yeah. So she was convicted of murder, right? One of the options that the jury had along with acquittal would've been manslaughter. Were you surprised when you heard the murder conviction?
Don West: I was a little surprised. Well, there was one other aspect about this case that the prosecution took full advantage of. And when I say taking full advantage of something, I'm not suggesting it's unethical or somehow even inappropriate, although I think there's some arguments to be made that the prosecutor is always supposed to take the high road and that their goal is serving justice not just getting a conviction, but I can tell you after many trials and lots of years of doing this, it's an adversarial process. There are egos on the line, everybody wants to win and if you see a chance, unless there's a clear prohibition against it, you're going to take it with a prosecutor or a defense lawyer. And they saw a chance and they took full advantage of it when during examination, Amber Guyger was asked about what was happening at the time that she shot Botham Jean. As we mentioned before, there were two shots, one that missed, one that went through his chest. And I believe it was cross-examination the prosecutor asked whether she was trying to kill him. And I believe she was nervous, being on the stand, no matter how seasoned you are is an imposing, intimidating thing and it's pretty easy to get rattled.
Shawn Vincent: Yeah.
Don West: So my guess is her answer was more a product of that than in fact what she was thinking but it might've been regardless when she was asked whether she was trying to kill him, she said yes. So the prosecutor had that little nugget when they wanted to argue about her state of mind and what she was really doing all along that she was there trying to kill him and shot him through the heart.
Shawn Vincent: The right answer is she was trying to eliminate the immediate threat. That's the legal answer.
Don West: Well, that's the true answer, I hope because that's the answer that her training would have been. There's no police department that I've ever heard of including a recent tour of an NYPD training facility where the officers are taught to kill in the face of a threat. Certainly death may be a consequence and it may be the only consequence if you truly have to incapacitate somebody, but it's never the goal. And the goal is exactly as you said, is to stop the threat. To neutralize the threat. And I think a lot of times these fatal wounds aren't by design. No reason to think that she was shooting Botham Jean in the heart for the purpose of killing him. The training would be to shoot in the larger mass of the torso and unfortunately that's where the heart and other vital organs are that often result in death but also fortunately, if you have to stop the threat and incapacitate someone, that's a pretty good place to hit him other than shooting somebody in the head, which from a training perspective is pretty hard to do. I don't claim to understand that fully but you shoot where you think you can hit somebody that's the threat and then you go from there.
Shawn Vincent: Well, it's like the Sundance Kid says, aim for the middle and that way, in case you miss, you still hit something,
Don West: So when she said, “I intended to kill him,” I think she misspoke. That was something that was one of those oh, oh, moments because it resonated in such an ugly way in the case. But I really questioned whether that was simply more misspeaking than that was, in fact, her intention.
Shawn Vincent: But if you're a juror and you have to decide between murder and manslaughter, “I meant to kill him” is a tough obstacle to overcome.
Don West: Hard for me to imagine. She had good lawyers, experienced lawyers. It's hard for me to imagine that they wouldn't have been through that with her in some way in the pre-trial preparation. But I don't know what statements she may have made before that she got locked in on something like that. But it came as a surprise to me. I think it probably came as a surprise to everybody that she answered that way and I think that was simply unfortunate. It doesn't really change anything except the observation you just now had.
Shawn Vincent: Sure. But then you take a step further, now you have the guilty verdict and you talk about in Texas it's relatively unusual where that same jury gets to come up with the sentencing. And in this case for the murder conviction, it could've been anywhere between five and 99 years. I understand. And they chose-
Don West: Yeah. Unusual in the sense that it doesn't happen very many places outside of Texas. Yes. It's common in Texas, that's how they do things.
Shawn Vincent: Sure. In Florida, the judge is going to give you the sentence and-
Don West: Exactly right.
Shawn Vincent: And this jury, the same jury that convicted her of murder, went way low on that sentencing range. They gave her 10 years.
Don West: Well, the trial and the sentencing are two distinct phases with different rules and different objectives. Of course it becomes pretty clear in a place like Texas, where the jury is actively involved in the sentencing, where there's actually a separate evidentiary proceeding. Typically in other jurisdictions, the jury will decide guilt or innocence and then there'll be a separate hearing but only with the judge or they hear additional evidence and aggravation to support a higher sentence based upon perhaps the background and character prior record, those things that would influence a judge and sentencing guidelines, calculations, that stuff. And much is the same in Texas but with the jury, witnesses testify, It's a much more formal process and then the jury retires to deliberate again and come up with a sentencing.
Shawn Vincent: So what does it mean to hear that they come up with this 10 years instead of 99 years -- instead of 20 years?
Don West: A sentencing hearing from a defendant's perspective is going to focus largely on mitigation. That's really the first time in most cases where the jury or the judge, depending on who the sentencer is, gets to hear about the person. There may be some stuff in the trial itself that comes out but how the person conducted themselves in the past, who their friends were, character references, employers, friends, that stuff is highly relevant. We have in the United States individualized sentencing. So there's virtually, unless it's a mandatory minimum, which I think is why there's so much condemnation of these mandatory minimum sentences and especially the high ones and for certain crimes is it takes the individuality away from the person being sentenced and also removes the discretion of the judge.
Shawn Vincent: Sure. Every crime's committed within a very specific context and that context matters when it comes to punishment.
Don West: And I think this case showed that dramatically, too. And while the jury sent a clear message that what she did was a crime and a serious crime, that there is value to her life, that as a public servant, as a police officer there's value to that. I think that... Of course, I don't know what they said in the jury room, but they obviously took it very seriously and after making a tough decision on guilt and innocence probably made even a tougher decision on sentencing because they had to decide basically whether to lock her up for the rest of her life or give her a chance at life.
Shawn Vincent: Sure. Because she's a young woman, in 10 years, she still has life to live.
Don West: Shawn, it's interesting about this case now that we've talked about the charge. If I'm not mistaken, she was first charged with manslaughter and then the case was taken to the grand jury. By charge I think probably the prosecutor's office was able to make that charge taken to the grand jury and the grand jury upped it to murder.
Shawn Vincent: Okay.
Don West: So then the trial jury instead of reducing it to manslaughter, as many thought it would if there was a conviction actually maintained the main charge, the murder charge . . .
Shawn Vincent: But gave her a more “manslaughter” sentence for it.
Don West: Yeah. As I understand it, a 10 year sentence, the one that she got there's going to be parole eligibility in about five years. It may not result in parole but I think that would be the earliest possible date that she could be released. The next five years are going to be pretty tough for her, not to focus so much on her as opposed to the suffering of Botham Jean's family and the tragic loss of his life. That's what's interesting about murder cases though, is that every murder case starts with someone that's been killed in some way. The starting point, not the ending point so it's really moving past that to how the system works with the focus on the accused. So the victim doesn't get lost along the way but from a jurisprudence standpoint, it's not about the victim.
Shawn Vincent: So that's definitely just one of the remarkable parts of this case. And that is when the family of Botham Jean had an opportunity to give an impact statement, Botham's brother basically said he forgave Amber and didn't wish her any ill will and in fact asked the judge for permission to give her a hug. And there was a very dramatic moment where she goes and embraces him and she's in tears.
Don West: I think that was so extraordinary in the normal course of affairs that everybody did a double take when he made that request and the judge hesitated. The knee jerk-reaction would be to say, "No, that's not permitted." And say, "Well, for security reasons or what have you." But this judge was very contemplative and very humanistic at the end especially. And she said yes. And Mr. Jean's brother got off the stand and walked toward counsel table where Ms. Guyger was seated and she stood up and they met in the middle of the courtroom and hugged. It was incredibly powerful and caught me completely by surprise. I hadn't seen such a thing.
Shawn Vincent: I can’t pretend to think that this is actually true or know it in any way, but I got the impression that after this was all done and she got her sentence that she was ready to serve it. I felt that she was genuinely devastated and truly remorseful for what happened and you could see the pain of it on her face. And I think having the opportunity to pay for it, but still have a life afterwards was a good result for her.
Don West: There may very well have been some relief. You're not allowed to show that thing during the process. The process is very rigid and formal and obviously adversarial as we've talked about. Can you imagine the uncertainty of not knowing whether you would receive a sentence that would allow you to have some life left or whether you would effectively be serving the rest of your life in prison. And she certainly has a sense of fairness and justice. She was a cop for a long time and she certainly wouldn't welcome spending 10 years in prison but I have to think knowing how badly she knows that she screwed up that she has to understand there's a sense of fairness in all of that.
Shawn Vincent: I think that's right.
Don West: Some of the evidence in sentencing was presented in court to the jury and then the jury went back to deliberate on the sentence and then there was an additional opportunity for family members or others, I suppose to speak more directly to the defendant. So there was a separate proceeding where family members, while they were in court and they were on the stand, the judge was in the courtroom, they were really talking more to Ms. Guyger. And that was the moment that Botham Jean's brother Brandt talked about forgiveness and the hug and that was outside the presence of the jury. So notwithstanding that the jury still gave-
Shawn Vincent: Still went easy on her essentially. Well, we talked about looking for the lessons for concealed carriers so that they don't repeat those lessons. And in this case, I think the real takeaway for me is what we talk a little bit about at the beginning -- is just that very often in a stressful situation your perceptions about what's going on can be wrong. In this case, it's extraordinary unusual that she mistook someone else's home for her home. But what's not as uncommon is for someone to mistake an intruder for the wrong person. If someone that they know or someone who belongs there as an intruder or even more commonly to mistake someone who's unarmed for someone who's armed, right? We saw Drejka mistake someone who's intoxicated for someone who's making rational decisions. To me this just as a case that really underscores that when you get into these difficult decisions that you might not be right about your understanding of all the details. And while that doesn't necessarily matter if you're facing that imminent threat of death or great bodily harm, it should inform all those choices before the choice that you make. And sometimes we always emphasize avoiding the situation if you can at all, even if that means sometimes the bad guy gets away. But that's all in the service of making sure that you don't make mistakes that could cost you your freedom and the rest of your life.
Don West: That's exactly on point. And it makes my mind start to turn again about this case. What was she thinking? Could she possibly have been going in to protect her stuff? Texas is one of the few States in the country that allows deadly force in some scenarios to protect property. I hope that's not what she was thinking. I hope she knew better than that just because legally you might be allowed to do something does not in any way make it a smart choice and certainly not a reasonable choice depending on the other circumstances. Did she not know that there was nothing that person could do inside that place that mattered a lot? The only thing that mattered was her safe. And of course what you're saying, wasn't there enough that was going on that seemed out of order that would have caused someone to just take a second and reflect and regroup and reassess before... Even if you are a trained police officer, even if you have a sidearm and if you're used to going to the threat as opposed to away from it, isn't there enough there that would cause you to say, "Wait a second, I am not in immediate danger. I don't have to make an immediate decision. What's the smart thing to do so that nobody gets hurt?"
Shawn Vincent: Yup. And what I'm encouraging people to do is even if those signs aren't there, if you're in an escalating situation where the tension is getting high but before you reach a point of no return is make it a best practice. Our friend Bob O'Connor calls it the warrior mindset. I think that includes checking your assumptions before you take the next step and assume that you could be wrong about one of them before you commit to deadly force or putting yourself in the position where you won't have the choice to back away.
Don West: Make no mistake that juries take firearm offenses, especially those involving serious injury or death very seriously. And the first thing I believe the prosecutor will look to even those prosecutors that are proponents of the second amendment and proponents of concealed carry will immediately focus on whether the concealed carrier is responsible. Is there anything we can look to show that they were being reckless or irresponsible or not exercising the high level judgment that you expect someone to have when they're carrying around an instrument with them that can cause immediate death.
Shawn Vincent: Yeah.
Don West: We have seen that theme over and over and over again as we look back at the cases we've talked about.
Shawn Vincent: Well, that's a good point Don and as the psychiatrist says, I think our time's up.
Don West: But we haven't even talked about mom yet.
Shawn Vincent: Well, you may save that for a different day. As always, really enjoy talking with you about these things.
Don West: Thanks Shawn. Look forward to the next time. I hope it's soon. Take care.
Shawn Vincent: Alright. Take care.
In this second look at the Marissa Alexander case, Don West and Shawn Vincent look at their long legal fight Alexander faced in defense of the warning shot she fired during a 2010 confrontation with her estranged husband.
TRANSCRIPT:
Shawn Vincent: Well, hey Don, how's it going?
Don West: Great Shawn, good to talk with you.
Shawn Vincent: Last time we spoke, we were talking about the Marissa Alexander case. We had a great opportunity where Mike Darter and Stan Campbell had a chance to talk to Marissa Alexander. She was the defender in the famous warning shot case where she fired a single shot at her estranged, now ex-husband after he had just assaulted her in their shared marital home, and she made the mistake of not calling the police. He called the police. They came and questioned her, ultimately arrested her for this discharge of the firearm at her husband. It was ultimately, it ended up being a case of aggravated assault with a deadly weapon.
Shawn Vincent: And in our last podcast, if our listeners haven't listened to it, they should go online and pick that one up. First, we talk about how the whole event unfolded, how she had the violent encounter with him in the bathroom. She retreated to the garage, couldn't get out, got her gun, came back inside. He saw the gun, he threatened to kill her. She fired a shot. He left, called the police. Police came, they had to call her, tell her to come out of the house with her hands up, asked her some questions and then all of a sudden she who, at first felt like she had done nothing wrong because she was defending herself and her own home, was now wrapped up in the criminal justice system.
Don West: Yes, that's exactly right. She certainly was wrapped up in it. And as we'll discuss as we go on here, how much the laws in place ... not the laws in place always drive the case. Obviously those are the rules and the guidelines and they outline not just the elements of whatever offense is charged, but in many instances potential penalties as well. And more than most cases, Marissa Alexander found herself right in the middle of this legal quagmire where her fate was largely driven by what the legislature had done some years before in reference to mandatory minimum sentences.
Shawn Vincent: Yeah. So just to give a taste of what she was in for and what she had no idea about. I'm going to play a quick segment from her podcast with Mike and Stan.
Marissa Alexand: I literally was, so I'm naive. I'm thinking, okay, it's going to be like Law and Order or the Heat of the Night. I'll go to a little room, I'll tell them what happened and be like, everything is good. And it was not the case and it really feels it's a situation where you are guilty. You're not innocent until proven guilty. You're already guilty. You got to prove your way innocent.
Shawn Vincent: So not unlike the understanding that most people have about the criminal justice system, Marissa Alexander's expectations of what she was in for were set by television --in particular, Law and Order. And we talked about this a little bit in the podcast last time. It's a great place to start up. Now, this idea that she went into that little room with investigators. She told her side of the story and thought that that would be it okay, and they'd figure out the truth from her point of view, and then she gets to go on living her life. And instead she ended up getting booked that day in jail, given a prison uniform and a bologna sandwich and told to walk a line to a jail cell.
Don West: I think in her situation it's so much a parallel with other self-defense cases that we've seen or experienced even where because you don't feel like you've really done anything wrong. It's the urgency of trying to explain it. We touched upon that in an earlier podcast, but the idea that she's desperately trying to explain why she's not guilty and there she is in custody or certainly being detained at the time. And as we've seen, and I suspect in her case as well, just continue to dig the hole. And genuinely is surprised and at the end of this interview isn't a send on home because the police finally realized how wrong they were to suspect her all along. As she said, naive. I think that's a perfect word to explain her mindset and the mindset of many people that wind up in her situation.
Shawn Vincent: Well, I mean and it perfectly until you see it actually work you don't know. The first real interaction with the criminal justice system that I ever had is when I had a chance to work with you on the big famous case. And the first trial I ever saw was the Zimmerman trial but I got an inside look to see how everything works. And since then I've been lucky to call myself a litigation consultant. I've worked on all sorts of types of cases, both on the criminal side and on the civil plaintiff side. And a lot of what I ended up doing when I interact either with a defendant or with a plaintiff is helping communicate to them in non-legalese terms, just what's going on with the justice system and why, Don, everything takes so long.
Shawn Vincent: And Marissa Alexander's case, yeah, we're looking at the shooting itself happening on August, 1st of 2010. It was essentially, gosh, May 11th of 2012 when she finally had a two day trial and was found guilty. So that's was better than a year and a half later. And then she files an appeal and that appeal in terms of how quickly appeals are done, pretty quick, September of 2013. So another year and a half goes by and then during that time she ended up incarcerated for 1,065 days. She ends up at the end, not exonerated, but pleading to a lesser sentence with a threat of serving three times what her original sentence was.
Don West: Sure.
Shawn Vincent: So, like, nearly four years, she was lucky that the case was high-profile and that some people had some sympathy for a victim of domestic abuse using a firearm to defend herself. So she had some pro bono legal services, which most people would not have the benefit of. And so there she is at a time when her kids were entering, at least, her twins were entering their teenage years. She's gone for 1,065 days in a fight for her life where she doesn't know that she's not going to spend the rest of her life in jail.
Don West: So Shawn, let me ask you this question. You've studied the case, you were watching it in the news while it was unfolding along the way. Why do you think the case got such media attention and why people were going on television programs, news programs, internet and saying what an outrage this whole case was, that it was just a warning shot. And the fact that she was not just exposed to 20 years but sentenced to 20 years is outside the realm of belief. How could anybody be treated like that by the system?
Shawn Vincent: Yeah. Well, I don't think that you can ignore the fact that this happened, this overlapped the Zimmerman case when he looks at the cultural context that this falls under. So the big cultural issue underlying the Zimmerman defense was that here's a guy who shot an unarmed black man and looked to get the benefit of the Stand Your Ground law in a time where the justice system is perceived to be, and I believe is, disproportionately stacked against African American people. And then in the midst of that outrage, then you look at this other case where now you have a black woman who defended herself and didn't even kill anybody, didn't even hurt anybody. And she's looking at that time, 20 years in prison for it. And it just seemed a disproportionate and patently unfair. Do you think that's a fair assessment?
Don West: I do. So if you take the 20 years out of it and you talk about a year or two or probation or even three or four years for shooting a gun at somebody that was a close call and put other people at risk, if you assume for the moment that it wasn't legally justified and someone who does that get prosecuted and sent to prison for two or three years, is that as outrageous or is that just people understand sometimes bad things happen to good people or that domestic situations are chaotic and bad things happen that wouldn't typically happen in a person's life, but for the 20 years. It was the 20 years that was so outrageous and looks so disproportional that it became the flag that people wave to point out why she was treated so unfairly.
Shawn Vincent: Yeah, it feels wrong in your heart. I think that's when we talk about the Zimmerman case, I talk a lot about the truth with a big “T” and truth of the little “T.” And we know all the evidence in that case inside and out, and those little facts that weren't necessarily known to the public until the trial and then nobody, not everyone watched the trial beginning to end, and that they don't know those little facts. We know they added up to a justifiable use of force incident. And those are the little “Ts” and you can argue those until you're blue in the face. But what didn't change was the big “T,” the big truth that was sparked by the case, but not necessarily supported by the facts of the case, which is that there is an inequity in how people of different races are treated in the justice system.
Shawn Vincent: And so then you look at another case where all the little details, the little “Ts” make it difficult, but the big “T” is no one was hurt. And it was a woman defending herself from an abusive husband that she had a restraining order against. And to think that she's going to face a large minimum mandatory sentence just doesn't pass the feel test.
Don West: All right. If you take that to the next step, and I think we should try to drill into this a little bit. I know this area of the law quite well. I've handled a number of cases, firearms cases that have involved mandatory minimums. I'm familiar with prosecutorial discretion, I'm familiar with claims of an abuse of that discretion. I'm familiar with plea negotiations. I'm familiar with overcharging to use as a weapon to sort of bully away into a settlement and this is sort of my wheelhouse when it comes certainly to Florida law.
Don West: So I feel like I have a unique understanding of the dynamics of how cases like this play out and I think it might be a good illustration for how people can get caught up in a system over which they have no control and frankly the judge has virtually no control. The prosecutor has some control, the most discretion and the defense lawyers have really no control over how a case is pursued and ultimately how to manage risks. That's what these cases turn out to be from a lawyer standpoint is managing risk so that the worst possible thing doesn't happen.
Shawn Vincent: Your description of that makes me think of a runaway train, in that you get a case like this, you have laws built the way they're built. You have an action like this discharge of the weapon that triggers a criminal investigation and then it's almost like this train let loose down a hill, it is just going to go and that maybe the only control is the prosecutor in the caboose with the break back there, they can decide how fast or slow it goes.
Don West: And Miss Alexander's case is a wonderful example of that analogy and also how certain cases can have an impact. And I think her case had a direct demonstrable impact on how future cases were handled or can be handled. And I think that it's probably fair that her case had resulted in changes in the law since 2010 when she was prosecuted through 2012, 2013 and then when her new trial and ultimately the case was resolved, the law has changed specifically with regard to the minimum mandatory for aggravated assault.
Don West: And that's a life-changer for people that are involved in a similar situation as to what she found herself in.
Shawn Vincent: So where's a good place to start talking about that Don, and maybe it's this idea that minimum mandatory and how ... so you and I both know that the vast, vast majority of criminal prosecutions don't end in a trial; they end up in some sort of plea settlement. A few of them probably get non-billed eventually, but yeah, most of them end up with the defendant agreeing to some plea and some compromise sentence. Is that right?
Don West: The vast majority, I don't know what the numbers are. I think it's 90% probably. Maybe somewhere in the high 80s of cases that are resolved without a trial. Frankly, the system would come crashing down if all criminal defendants insisted on a jury trial. The system would collapse.
Shawn Vincent: Right.
Don West: And there's lots of reasons why cases resolve without a trial. And some of them are honest and forthright and based upon a better understanding of what happened after investigation and discovery and discussion. And the end result is a negotiated resolution that both sides are reasonably happy with.
Shawn Vincent: So what you're saying is that sometimes a prosecutor will see some evidence come out, listen to some argument and testimony and say maybe you're right, we don't have a real assault charge here. We're going to find a misdemeanor, and plea it out to that. And here's something that everyone can live with.
Don West: Yeah, that's right. The facts may be tweaked or changed. There may be assumptions that the prosecutor made based upon certain witness statements or evidence that when further investigation are done shown not to be exactly as that impression was. And frankly, a good defense lawyer will spend some time helping the prosecutor better understand who the defendant is, of course, if that's favorable. And why maybe their discretion should be exercised in favor of the accused. The prosecutor has all the cards, they make the charging decision, they involve are involved in any plea discussions which could result in one or two directions.
Don West: One direction could be that since every crime has a relative range of punishment with it, by offering a plea to a lesser crime, you've resulted necessarily in a different sentencing range typically. So the prosecutor may conclude at the end of the day, let's talk about a serious crime that could be a murder charge. And there are several lesser included charges. A first degree murder charge might carry a mandatory life sentence without parole. A second degree murder charge of the firearm could carry a life sentence. And then there's manslaughter, that is a lesser included offense of murder, but does not have mandatory minimum sentences typically. And the sentencing ranges considerably less on that.
Don West: So after investigation, the prosecutor may believe that the defendant committed a criminal act and the evidence may show it pretty convincingly, but be satisfied that it's more in the context of manslaughter rather than murder. So a defendant that's looking at a lengthy lengthy sentence may be life could wind up with a five year or 10 year sentence, which is still a lot of time, but it may in fact be a good and fair resolution of the case.
Shawn Vincent: Yeah, but all that said, you and I have seen cases where we think they're overcharged. And maybe a prosecutor might think, this could be manslaughter, but they're not going to talk you down the manslaughter if they start there. So they might start somewhere like it's second degree murder or first degree murder. And you talked about they hold all the cards. Now it's the defendant that has to call that bet. And going to trial is an all or nothing proposition. So you get in a situation where you're going to face this maximum prosecution that the DA wants to pursue, or you get this offer, which is a guarantee of less time or maybe a lesser charge that is easier for you to live with afterwards. Or you have the option to roll the dice, see what a jury thinks and either spend way more time in prison or none at all. That's the bet.
Don West: It is the bet and that's a calculation based upon your knowledge of the evidence of what you think the strengths of the prosecution case is, the strengths of your defenses, the intangibles, how certain evidence might resonate with a jury. We talked about several cases in prior podcasts including the Gerald Strebendt case where there was a guy who had a pretty good self-defense claim but was simply not willing to take the chance that at the end of the day, because of some prior events in his life and the fact that an AR-15 style weapon was used, and the deceased was unarmed, you put all that stuff together, and he made a decision that he would rather serve a relatively short prison sentence to avoid the risk of a lengthy -- if not life sentence -- and they entered into a plea and that happens every day in the criminal justice system.
Shawn Vincent: Yeah. And add onto that, that Strebendt had been in jail long enough to where he was already starting to become institutionalized. It's your perception of what's acceptable for the rest of your life changes, the deeper that you get into it. And you've seen this with clients who come at first, convinced of their innocence, and they're not going to serve a day in prison for this crime. They're never going to plead guilty to, after sometimes years, certainly months and months and months of prosecution with their savings drained, and probably their relationship shattered, and they've lost their job. Now they're a broken person and any light that gives them a way out of this prosecution now takes on a new luster, doesn't it?
Don West: Certainly does. Why don't we circle back and let me take a minute and explain some of the legal issues that Marissa Alexander found herself facing once she was arrested and then ultimately charged.
Shawn Vincent: Okay.
Don West: Then we can parse through that a little bit and better understand the decisions that were made by her lawyers and by her. And I think we can see a pretty clear trajectory as to how she wound up where she is now. And then we can actually talk a little bit about some of the changes, her advocacy and maybe some about the real effect of some of the advocacy.
Shawn Vincent: Great. So do you want to start?
Don West: Well, let's go back to the beginning and let me set the stage. This was in Jacksonville, Florida. The elected State Attorney was Angela Corey. She's pretty controversial. She's no longer the State Attorney. She was appointed by the governor, Rick Scott to handle the George Zimmerman / Trayvon Martin case. So I have a lot of firsthand experience with her and the lawyers that work for her, that are assigned to various serious high profile cases. And I can tell you that most of my experiences with her are not favorable. Well, without going into all of that, I can tell you that I'm no fan of hers, but at the same time I want to talk about the way her office handled this case as objectively as possible. So I'm going to give her office the benefit of the doubt, even though personally I don't feel that way.
Shawn Vincent: Fair enough.
Don West: So the case that the police got with Marissa Alexander was, as we've talked about at some length, she shoots a gun inside the house in the general direction of her husband. There's a bullet in the wall. It goes into the ceiling in the general vicinity of where he was standing. She claimed that she was attacked and he threatened to kill her and that she had no choice but to use deadly force. So the prosecutor had a wide range of charging options at that point. There were the attempted homicide or criminal homicide charges. There was certainly attempted first degree murder if they thought she fully intended to kill him, but just was unsuccessful. Attempted second degree, which is a reckless, wanton disregard for the safety of people. They could have charged even an attempted manslaughter, which is kind of a weird charge these days, but it would be on the books.
Don West: But they chose to file her with a specific intent crime of aggravated assault, meaning that she intended to threaten but did not necessarily have the intent to kill. It's typically a third degree felony punishable by up to five years. If you put a deadly weapon involved, specifically a firearm, then you have a three-year mandatory sentence that the judge has no discretion but to impose on a conviction.
Don West: Here's where the prosecutor has some discretion. They had discretion not to charge an attempted murder of some sort. They also had the discretion what level of aggravated assault to charge. They charged the enhanced crime under Florida's “10-20-Life” provision that was in effect at the time, which basically says that if you are committing a crime and you use a firearm, depending on the circumstances, you will receive a mandatory minimum sentence upon conviction at a certain level. With aggravated assault if you use a firearm and discharge it as opposed to just using it to point. If you discharge it, the mandatory minimum becomes 20 years.
Shawn Vincent: Just for context, like a manslaughter conviction, you could realistically be sentenced for much less than 20 years.
Don West: Interestingly enough, in Florida, if you use a firearm to commit the crime of manslaughter, there is no mandatory minimum associated with using a firearm for manslaughter because it's in a sense a crime of a gross negligence. It does not have the enhancement. So for example, while a firearm increases the potential maximum penalty, it does not impose a minimum penalty. So Michael Drejka, the Clearwater handicapped parking spot case that we've talked about-
Shawn Vincent: Sure.
Don West: ... he was charged with manslaughter, but he clearly used a firearm and then he was facing a maximum 30 years because of using a firearm, but there was no minimum. Interestingly enough, a different kind of crime could have resulted in a higher sentence, even if it didn't result in a death. So back to Marissa Alexander for a second, the prosecutor chose to charge her with aggravated assault with the discharge and that would apply to Rico Gray and also to the kids in the house if the prosecutor chose to charge her with that.
Don West: So going into it, she would have known after meeting with her defense lawyers and seeing the prosecution documents, that if she were convicted, she would face a mandatory minimum of 20 years, which means that the judge has no control over it. The judge cannot impose one day less than the 20 years upon a conviction.
Shawn Vincent: Sure. And the jury would have no idea what the minimum was if they chose to.
Don West: That's a really important part. I've been watching the Amber Guyger case in Texas where Texas juries actually impose the sentence after finding an individual accused of a particular crime. And unlike Texas, Florida juries and most juries around the country have absolutely no idea what the range of sentences will be on a conviction, whether there's a mandatory minimum, if so, how much. They're looking at the evidence and whether the evidence supports the elements of the particular crime.
Don West: And frankly, if you have a hole in the wall from a bullet and you have a person saying they fired the gun, it's kind of a no brainer to conclude that the person discharged the gun. So from a factual standpoint, if the jury rejected self-defense, Marissa Alexander was in big trouble. And you're right, the jury would not have known the actual effect of the conviction. So when I said before, I'm no fan of Angela Corey, I do want to point out that in the plea discussions, in the negotiations of the case, right at the very beginning, Ms. Alexander had a plea offer. The prosecutor agreed that upon a guilty plea or no contest plea, whatever the terms were, that they would amend the charge from the aggravated assault with a discharge to an aggravated assault with the possession of a deadly weapon, specifically a firearm.
Don West: And what that would have done is taken the mandatory minimum from 20 years down to three. Again, no discretion if she pleads to it, the judge has to impose a sentence of at least three years. So she would have been looking at a maximum of five years, a minimum of three. And I think the deal was she would just serve the three years and be done with it.
Shawn Vincent: So now the gambling bet given to Alexander at this point is a guaranteed three years or roll the dice and it's either 20 years or nothing. There's nothing really in between here.
Don West: There's not going to be much in between because like we were saying, the facts clearly showed she pulled the trigger, clearly showed she fired the gun, and if the jury didn't buy self-defense then there was no reason for them not to convict her of the aggravated assault with a discharge. So that was the decision she made with the benefit of counsel. I'm sure they agonized over it, and I imagine she knew what the risk was, but interestingly-
Shawn Vincent: She said, "I'm innocent, I'm going to go for it.”
Don West: Yeah, but I think what's really interesting about this case too, is Florida, in 2005 when they passed this Stand Your Ground, wide ranging comprehensive statute included the self-defense immunity provision that allowed people charged in a criminal offense who claimed self-defense to take it before the judge, prior to the criminal trial and present their case. And if the judge believed there was a sufficient showing that it was in self-defense, then the judge could dismiss the case. The law has changed since then. Under the law in effect during Ms. Alexander's case, the defense files a petition with the court and then at the hearing has to show by a preponderance of the evidence, like 51%, that she acted in self-defense.
Shawn Vincent: So in the immunity hearing back then, the defense has the burden of proof, to prove that it, in fact, was self-defense.
Don West: That it was self-defense. Yeah. So she had that opportunity and they took advantage of it and they had the hearing and at the end of the hearing, which it's an evidentiary hearing. I mean, they would call witnesses and make arguments. You can call experts.
Shawn Vincent: It's like a mini-trial. It's essentially a trial.
Don West: It is. I've been involved in one and you as well, that lasted a full five days. There was 30 or 40 hours of testimony and argument.
Shawn Vincent: Which was three days longer than Marissa Alexander's ultimate trial. Yeah.
Don West: That's right. So somebody walking into the courtroom would see this going on and have no reason to think, it wasn't a full blown trial.
Shawn Vincent: Except there is no jury there.
Don West: Exactly right. So Marissa Alexander lost the hearing. The judge ruled against her and concluded that she'd not made the necessary showing and refused to dismiss the case. I would have thought that's a pretty good indication to me that self-defense was not clear, which in my mind would have heightened the risk of going to a jury trial.
Shawn Vincent: Sure.
Don West: But however it sorted out, she still rejected the plea offer and decided to take her chances with a jury. Unfortunately, as we know, not only did the jury convict her of aggravated assault, but they also convicted her of the aggravated assault with the discharge of the firearm, which triggered the mandatory minimum. They didn't give her the lesser charge.
Shawn Vincent: Go straight to jail, do not pass “Go.”
Don West: Yeah, and the judge had no choice but to sentence her to 20 years. So if I look back on it, I can't say that the prosecutor's office was completely outrageous or irresponsible. They made from their perspective a pretty decent offer in that they were convinced they had the evidence to prove that she was not justified, that she in fact committed a crime. They clearly could have gone for attempted murder if they wanted to really overcharge. They charged the aggravated assault with the discharge, which is pretty consistent, although extremely punitive as we know because of the mandatory minimum and then to avoid the risk of trial and to exercise their discretion, they offered a plea that while it would have meant a prison sentence would have been capped at three years and that would have been the end of the case.
Shawn Vincent: But it was not the end of the case.
Don West: So we can criticize prosecutors all the time and point to them and I think Ms. Corey certainly had the fingers pointed at her. She became the person that was vilified in all of this, when the case got characterized as just a warning shot and all of that. But in my experience, I have a hard time concluding that it was outrageous. Three years, people may think was outrageous, but I've seen too much in the system to think that if the self-defense claim was rejected and the 20 years may have been a bit of a bludgeoning tool, but they did make the offer that would have allowed her to resolve the case in three years. So it's rejected. She's convicted, she sentenced to 20 years. I imagine her mind is blown at that point. This was the worst possible outcome for her under the circumstances.
Shawn Vincent: Well, she says in the podcast with Mike and Stan that she said immediately, “All right, round two. What's next?” She was still convinced of her innocence and was going to exhaust the procedural opportunities that she had.
Don West: Well for a jury to convict somebody -- unless they are a complete rogue jury that's operating out of bias or prejudice or emotion or something that's not supposed to factor in -- if a jury convicts you, they have to be unanimous. They have to have concluded that the prosecutor proved the crime beyond a reasonable doubt, and also convinced that in self-defense that the state proved beyond a reasonable doubt that it was not lawful self-defense, in some ways an extension of what the judge said that Marissa hadn't established in the immunity hearing.
Don West: So I don't know what Marissa was thinking, whether she was somewhat diluted or confused about what the evidentiary standard was or what the power of the evidence was. But for someone on the outside, once you lose the immunity hearing and once you get convicted by a jury, I think the writing is pretty much on the wall at that point. So the next step procedurally is an appeal.
Shawn Vincent: Right. And we've talked about appeals before. Not everyone understands what an appeal is. Sometimes people think it's a second shot at the trial with judges from a different court, but in fact, you can't appeal the result of a trial, you can only appeal specific errors that perhaps the judge made.
Don West: Legal errors typically. Sometimes if the prosecution commits ethical mistakes or if they comment on the right to remain silent, if they appeal solely to emotion, if they make it unfair, that can be a subject of an appeal. But usually it boils down to decisions the judge made and whether or not those are consistent with the law or there's been some sort of fatal mistake. Sometimes mistakes can be real but found not to have an impact on the outcome. So it's no harm no foul kind of thing, but what appeals are not, and I think this is the area of the greatest misunderstanding, is a reevaluation of the credibility of the witnesses.
Don West: For Marissa Alexander to have been convicted, the jury would have had to accept the testimony of Rico Gray or the kids or some combination of that and reject her testimony and conclude that either he didn't threaten her, and that she sort of made that up to justify shooting at him, or that the threat didn't rise to the level of an imminent threat of serious bodily harm or death or some part of that, that satisfied the jury; that she was not allowed to act in the manner that she did and that it wasn't self-defense. So the appeal court doesn't go back and decide who they believe more than the jury did.
Shawn Vincent: Right. And then in this case, the appeal was granted based upon the jury instruction that was given, the defence felt, errantly.
Don West: At the end of all of the evidence, meaning whatever the prosecution puts on, whatever the defense puts on before the final arguments, there is a meeting with the lawyers outside the presence of the jury and the judge to decide what instructions the jury will receive. A lot of them are boilerplate rules for deliberation and definition of reasonable doubt and that sort of stuff. But then there's a number of them that are case specific and in self-defense cases making it clear whose job it is to prove what and if the judge decides to give certain instructions, a certain instruction specifically as to which side has to prove what element or by what standard, then those become the guidance for the jury to apply when they're trying to evaluate the evidence and decide whether the laws were broken and if so if the defenses are sustained and that sort of thing. So it'd becomes-
Shawn Vincent: So if the jury was given the wrong instruction, like in the Gyrell Lee case that we talked about, than it's pretty easy to make an argument to the appellate courts at least, that had they been given the proper instruction, the jury could have come up with a different result.
Don West: Exactly right. And we have a parallel to that case here where on appeal, the appeals court decided that the jury was miss-instructed on a couple of key aspects of the law of self-defense, and that it was important enough that it may have affected the jury's verdict, and as a result, reversed the conviction and ordered a new trial. So that's how Marissa Alexander wound up basically with a do-over because the appellate court found that the first jury really didn't have the right instructions.
Shawn Vincent: But get this. So in this particular case, the do-over is a triple or nothing do-over because, in the intervening time, there had been some controversy over how the 20-year minimum mandatory would be applied. And Angela Corey's office made the case that there were three of them, there was Rico Gray and then his two children who are in the vicinity and that aggravated assault applied to all three of them. And a higher court ruled, that 20 year minimum would be now consecutive instead of concurrent. So instead of it all running in one 20 year sentence, she was facing in the second trial, a minimum mandatory of 60 years if convicted.
Don West: I don't know Shawn, whether frankly from my standpoint as a criminal defense lawyer looking at this case and looking at the history, I don't know if that would have made a difference to me because 20 years is a hell of a long time, and I'm not sure adding more on top of that would have made a difference in whether given the history of the case and the lack of success at the various stages before would have convinced me not to go to trial when I was otherwise going to go to trial.
Shawn Vincent: So it's a big enough number where 20 and 60 is still essentially the best part of the rest of your life?
Don West: It depends on how the choice was presented. The prosecutor, like we said, holds all the cards, assuming they decided to raise the stakes for a trial. I think it depends on what they do as well and their discretion to offset that. We know that first time around they had offered a reduced charge to the three year mandatory minimum and then this time from what you described, they raised the stakes from 20 to 60. Now if I'm looking at serving 20 versus 60 I don't know if I would opt at my age, I may not make the 20 so what difference does the extra 40 make?
Don West: On the other hand, if I'm a lot younger, I may decide that if I've got no choice and I'm convinced I'm going to lose, I may opt for 20 to avoid the risk of facing 60, that's not what she was facing though.
Shawn Vincent: Right. But then you get the offer again for three years and you've already served a thousand days of that.
Don West: So I think realistically the analysis has to be three versus 20 and to me 63 versus 20 given the history of this case doesn't make that much difference to me. Marissa Alexander with her lawyers opted, and I think this is where the prosecutor deserves some credit, I think for ... They do not have to make any plea offer whatsoever. There is no requirement that they offer any reduced plea or any reduced sentence. They may have felt the pressure of the media. They may have felt that they couldn't withstand the onslaught of what would happen, no doubt if they insisted on going forward and she wound up with 20 years again or God forbid, 60 years. But I think to their credit, regardless of whether the motives were sincere, they made the plea offer that they'd made before, which is plead aggravated assault, get a three year sentence and be done with it.
Shawn Vincent: Well, let's wrap it up. Let's listen real quick to what Marissa Alexander had to say about contemplating that plea.
Don West: Okay.
Marissa Alexand: And I have to make a decision not only for myself but for people who also have to be called to be witnessed. And these are teenagers, there was a lot of decision making to make that process. And like he mentioned, it's an easy one for some but for me it was not because I had that to consider plus the fact that she was trying to give me 60 years this time. So if I've gone to trial again, then I wasn't facing 20, it was 60 years.
Speaker 1: Wow.
Shawn Vincent: So she mentions the 60 years and they're thinking there, but she also has to kind of think about what another trial is going to do to her family and a particular her teenage twins and other people she loves and cares that would be called to testify and go through that whole ordeal again.
Don West: Oh my goodness, imagine for a minute what it would be like to be in that situation, believing that you really didn't do anything wrong, but at every opportunity along the way for someone on the outside to evaluate that I'm rejecting your claim and now you've got the biggest decision of your life. Am I going to roll the dice facing 20 years, 40 years, 60 years, knowing that that would effectively not only be the end of her life and freedom, but how it would impact her children. It's just gut-wrenching.
Shawn Vincent: Well, it's also a great lesson that the prosecution itself is a punishment. Set aside any jail time that you might serve. Just the ongoing nightmare of being accused and facing a criminal prosecution is difficult to explain. And I've known people well as they've gone through that process and yeah, I can't even understand it the way that somebody who's been through it can understand it, of course.
Don West: I've been involved in cases where the client gets so desperate, so frustrated, exasperated and fearful of what their future will bring that they just want it over. They lose perspective and proportionality and they get to the point they don't care as long as it's over. And that's because of what you're talking about. The fear of waking up every morning and not knowing.
Shawn Vincent: Go ahead.
Don West: Also, keep in mind that, after losing the first trial, the time that the case was on appeal, Marissa Alexander was in prison. So she suffered the consequences of being in prison, not knowing whether she was going to have to serve the rest of that sentence, but by the time she got the second opportunity, the new trial and the opportunity to make this decision how to resolve it, she'd already accumulated the better part of three years. Now, while she can't get that back, if she went to trial and were acquitted, and it's not like you can store it up and get a refund for the time that you've been in prison, at the same time, she is required by law to get credit for any time served against any new sentence.
Shawn Vincent: And so she had already spent $2.80 out of that three bucks.
Don West: All right, so let's say then that she's looking at a deal for three years versus the risk of 20, 40 or 60 years and the three years now is-
Shawn Vincent: 64 days.
Don West: 64 days. She's a convicted felon. As a result of it, she has to deal with that the rest of her life. She entered a plea which acknowledged guilt in some way, but on the other hand, it had to make so much sense to her to serve another month or two, effectively. Now there may have been some after supervision, some other conditions, but the bottom line is she could effectively, at that point, trade two months for the risk of 60 years.
Shawn Vincent: And just the relief of having it behind you and resolved must be a huge weight off, knowing that the uncertainty is over, and now you know how you can go forward with your life.
Don West: So this is a fascinating story because it touches on so many things, including idealism, knowing you didn't do anything wrong ultimately to a compromise that everyone would have to agree was in her best interest. Why would she possibly take the chance on being away from her children's life for the next 20, 40 60 years? At the same time, it doesn't sit well with her. She feels like she was victimized by the very system that she respected and believed in all those years of her life. So it's a really really interesting dynamic.
Shawn Vincent: Let me play a little clip real quick. That I think encapsulates how she felt about the experience going through that prosecution.
Marissa Alexand: Very dark, very hard, very difficult times. There were a lot of very difficult decisions to make. There was a lot of very difficult conversations to have, and so when I explained to people as you are doing on your show, is if you get yourself in this system, it's like an octopus. It's just wrapping itself around you, and it's so difficult, once you're in, it is so very difficult to get out of it.
Shawn Vincent: I was struck by that metaphor of the octopus, and that's really why we talk. We spent this whole almost an hour now talking about this complicated legal path that Marissa Alexander went down. But we talked at the beginning about that being a runaway train and the initiation of that was her decision to pull the trigger and-
Don West: I think more than any one thing, it was her decision to pull the trigger. Her decision to go out to the garage to get the gun, I think was a bad one. Her decision to go in the house with it was a bad one. Probably setting the stage for the illegality at that point, regardless of how it's settled out. But pulling the trigger is what turned it from something relatively little to something that nobody could ignore and put her on this path. So how many times have we told people if there is any possible way to avoid it, take every ... no matter how legally right you are, know how justified or angry or offended or how much you want to show that you can't be treated like that, no matter what part of that surging through the brain. The only smart choice is to avoid it.
Shawn Vincent: If you possibly can. And let me play this. You talked at the beginning about how the law changed and some things changed after this case, and I want to play what she said about the 10-20-life minimum mandatory. And I think that's a great way to segue into what the bigger resolution of this case was beyond just her,
Marissa Alexand: The intent of 10-20-life was for habitual violent offenders. It was just not used, just the willingly they throw around. But in addition to that, prostitutes absolutely like everything else have the right to be able to say, well no, we're not going to use the enhancement, incident enhancement. And they had discretion.
Shawn Vincent: So that goes said, to the discretion that you talked about. Now you had mentioned that some things changed after this case.
Don West: The big thing that changed relates specifically to aggravated assault as being one of those enumerated crimes on this list of crimes for which the use of a firearm triggers the enhancement. The 10-20-life enhancement under Florida law applies to a number of specific crimes, and she is exactly right. I think in terms of the legislative intent, somebody commits a robbery and uses a gun, shoots the gun, hurts somebody. All of those have higher and higher mandatory minimum sentences. Kidnapping, sexual assault, that kind of stuff, burglary makes perfect sense why it would be on that list. Even degrees of murder. However, aggravated assault was on the list as well. And that's what triggered in her case, the 20 year mandatory for the discharge of her firearm.
Don West: Well following her case, and the attention that her case brought to this, the legislature sort of revisited and around 2014 didn't eliminate it, but they gave the judge some discretion finally. So if you are convicted of aggravated assault under one of these 10-20-life enhancements and the judge felt that the circumstances were mitigated, that whether it was cause of a self-defense scenario, but not necessarily completely legal, but there was some reasonable explanation for how this was transpired. The judge would have the authority to mitigate and impose a sentence less than the mandatory minimum.
Don West: And then finally, a couple of years later in 2016, the legislature simply removed aggravated assault from that list of enumerated felonies triggering the 10-20-life. So at this point you can commit the crime of aggravated assault, you can still go to prison for it, and you'd still go to prison for at least three years under most circumstances, but no longer are you facing the 20-year mandatory if the gun is discharged.
Shawn Vincent: Which changes the bets you make as a defendant, it puts a couple of cards back into your hand, when you-
Don West: It may have changed. Yeah. It could have changed the entire direction this case went. Now whether it ... I'm a bit cynical, I'm a bit jaded from having done this for so long, and I expressed my frustration about Angela Corey early on, and I'll digress for a moment. One of the things that really made me mad was we were in the Zimmerman case and I'd pulled into the courthouse, I think it was a Saturday in fact, and the jury was out deliberating and we had to show up. We'd been trying the case for about a month and I pulled into a parking place, parked, went inside and about 20 minutes later the deputies came in to find me and said, you're parking in Ms. Corey's space and she wants you to move the car.
Don West: I didn't need any more aggravation so I wound up doing it. But just that kind of ego driven pettiness just and of course subject about an entirely different conversation would be some of the ethics and some of the shenanigans that were pulled in that case. Not by her specifically but-
Shawn Vincent: Just by the team.
Don West: Well, I have enough stuff there that we could talk about.
Shawn Vincent: I'm thrilled that after all these years there are still stories about that time that I haven't heard.
Don West: I wonder what would have happened in this case if the prosecutor couldn't use that enhanced aggravated assault charge on her. Would they have charged her in this sort of overcharging bullying context with an attempted murder of some sort, but assuming not, then she would have had a much more reasonable, realistic way to address the charges, make an informed decision whether to roll the dice.
Shawn Vincent: And had she been convicted, there would've been a much broader sentencing range and it almost certainly wouldn't have been 20 years.
Don West: Agreed.
Shawn Vincent: We have like a minute left here. I want to play something real quick that Marissa Alexander said about self-defense in the legal process that follows that I think encapsulates everything that we've ever talked about. So hold on.
Marissa Alexand: And your options are life and death or prison and freedom. I mean, essentially at the end of the day, that's what it's going to be. You either have to choose between life or death, depending on how bad it is. If you could leave, then you have your life and you have your freedom. If not, then you risk, ultimately in the end, which would be something tragic as death. And if you survive it, then you could be prison, which was my case. So these are your options in these things.
Shawn Vincent: She says, when you choose to carry and when you've committed to using a gun for self-defense, then you may one day face a choice that is life, death, freedom, or prison and what she buries in there is the final lesson that we touched on earlier that if you can leave with your life then you'll leave with your freedom, too.
Don West: Profound, insightful and coming from a person who certainly knows what she's saying.
Shawn Vincent: Yep. I think that does it, Don, that was ... I think there's ... often we want to talk about the legal minutiae, and I know for non lawyers and non-litigation consultants that can get a little dry, but in the context of this case, I think it was a great case to walk through that. So I hope it gives our listeners some better perspective at what that fight after the fight looks at.
Don West: And I'm going to I'm going to hold us up one more minute and finish our brief discussion since you brought it up about the legal minutiae and Marissa Alexander's fate.
Shawn Vincent: Sure, please.
Don West: She lost her self-defense immunity hearing when the law required her to prove by a preponderance of the evidence that she acted in self-defense. Another area of the law that she had complained about was having to prove that when at trial the prosecutor had to prove that it wasn't self-defense. There was a concerted effort and movement and the legislature changed that statute as well. So now in a self-defense immunity hearing in Florida instead of the defendant having to prove by a preponderance that they acted in self-defense. Now when you claim immunity and you file your petition and have your hearing with the judge, the judge applies the standard of whether the prosecutor has shown by clear and convincing evidence a high standard, not quite beyond a reasonable doubt, but getting up there has to prove by clear and convincing evidence that you did not act in self-defense, much closer to the standard used at the jury trial.
Don West: And I don't know how much credit Ms. Alexander gets for that, but it's something that she talks about and there has been a clear change in the law in Florida, in the defenders' favor when it comes to the self-defense immunity, and I think to some degree, that's a byproduct of her case as well.
Shawn Vincent: All right, everybody, that's it for today. Thanks for listening. I hope you get some new insights into the complexities and difficulties of the legal fight that can ensue after a self-defense shooting even when nobody's hurt. This is Shawn Vincent. Until next time, stay safe out there.
Not long ago Stan Campbell and Mike Darter spoke with Marissa Alexander about the warning shot she fired that triggered a long legal battle and some substantial prison time. In this episode Don West and Shawn Vincent draw upon the conversation with Alexander to identify the lessons learned for concealed carriers.
TRANSCRIPT:
Shawn Vincent: All right. Don, what's happening.
Don West: Hey, Shawn. Good to talk with you again.
Shawn Vincent: Yeah. So, it was a couple of months ago that Stan Campbell and Mike Darter, founders of the CCW Safe, had a chance to talk with Marissa Alexander, who is actually someone who survived a self-defense encounter, and was prosecuted, and actually served time in prison, and is now out and she's an advocate that goes around talking about domestic violence, and gun rights, and educating people about self-defense.
Don West: That's right. People may not immediately know the name Marissa Alexander, but this is one of those handful of cases coming out of Florida several years ago that get known nationwide by some other name. We know the Loud Music Case: Michael Dunn in Jacksonville. I think Marissa Alexander also was a Jacksonville, Florida case.
Shawn Vincent: She was.
Don West: It's known as the warning shot case. It got lots of publicity at various stages.
Shawn Vincent: Yeah. Part of the reason that it became so well-known is this idea that it was a warning shot. Here's a self-defense case where nobody's killed. In fact, nobody's even harmed by the discharge of the weapon. A single shot was fired, nobody was hurt, and then you have Marissa Alexander looking at a very lengthy prison sentence for what she claimed was defending herself against an abusive husband, who she had a type of restraining order against, a contact with no violence order.
Don West: Marissa had just had a baby, who's in the hospital. I think when this happened, the baby may still have been in the hospital, and she was going back to her residence for the first time in a while where her husband and her husband's children were there, sort of setting the stage for the argument that then led up to this.
Shawn Vincent: Sure. She was actually nine days after giving birth to her premature baby. The baby is in the hospital. She's staying with her mother because she's got this problem with her husband, the father of that new baby. She was going back to that marital home to get some stuff that she needed, and that's where Rico Gray, that's the name of her husband at the time, now ex-husband, and his two kids encountered her there.
Don West: As I recall, there was an interesting lead-in to the argument. That's not the purpose of our podcast, but as I remember, some of the discussion that Ms. Alexander was showing Mr. Gray pictures of the baby, and actually handed him phone to him to look through the pictures, and while she was in the bathroom either collecting things or washing her face or what have you, he wound up scrolling through the phone and came upon some text messages, which apparently were between Ms. Alexander and a prior husband or someone with whom he was then accusing her of ... I guess Mr. Gray was then accusing her of some infidelity and maybe even questioning the father of the child.
Don West: So, one innocent step maybe even that was a nice gesture on her part. Foolish. Can you think about how these things just go from zero to 100 in a half a second? All of a sudden, Rico Gray is angry because he questions if he's the father of this child. Oh, my goodness!
Shawn Vincent: Alexander described it as a “jealous rage.” Yeah. I think what she said, part of it, is that some suggestion that the child that he thought they shared might not be his or some suggestion of that. So, he went off the handle. Now, clearly, with this restraining order, this contact with no violence order, Alexander had convinced the court that there was some cause for concern here to support her allegations that this was an abusive relationship. She actually claims to Mike and Stan in her podcast with them that her premature birth was induced by some of that violence.
Shawn Vincent: So, he goes into his jealous rage, and she tells the story. She's in the bathroom. He goes in, approaches her there, and chokes her or attempts to choke her in the bathroom. She struggles against him, and is able to get away. She goes out to the garage. She claims to try to escape, but she can't get out. She doesn't have her keys. The garage door won't open. She ends up getting her gun coming back inside and that's where she confronts him in the kitchen of their house.
Don West: Yes. I think that she had perhaps parked the car in the garage, but then when she went back out, she couldn't get the garage door to open, but she did have a firearm in the car, a firearm for which she was issued a lawful permit to carry concealed in Florida, and then she made that fateful decision to grab the gun, and instead of coming up with some other way to get out, she elected to go back into the house, which I would have to think she would expect there to be some verbal confrontation, if nothing else, but in any event, that's exactly as described it.
Don West: She went back inside, where Mr. Gray was and then go ahead and describe how she saw these things unfold.
Shawn Vincent: Well, I'd say since we have the benefit of Mike and Stan's podcast, let's let her tell this part of the story from her own words.
Don West: Great.
Shawn Vincent: I'll play this clip.
Marissa: So, let me be clear. When I left out the room, it was to get into my truck and leave. It was not to go and come. He was parked out front, and came in through the front door. My vehicle was in the garage. So, in order for me leave, I needed to go to the garage where my vehicle was parked. When I got there, not only did I not have a key, the garage door would not go up.
Marissa: So, at that point because I knew that I had no other way out other than to stay in the garage, which locks from the inside out, what I needed to go do is go back in the house and I couldn't go back in in the state that I was in with the assault that took place prior to in the bathroom and not be able to protect myself.
Shawn Vincent: So, that's what Marissa has to say about this. So, we'll talk about in a minute the problems that had caused her in her case when she actually left a place of relative safety or she left a place of danger to a place of more relative safety, and then reengaged. We described ourselves into the kitchen. So, she fires this shot.
Shawn Vincent: Well, here's another clip where she talks about encountering him there in the kitchen.
Marissa: Right. So, that was in the kitchen where he came and he confronted me. He saw me with my firearm, threatened me, and then that's when I fired my warning, my shot. He didn't see my gun and run. He didn't do that. He saw it and decided he will threaten to kill me.
Shawn Vincent: She says that after he saw the gun that he wasn't initially perturbed by this that he threatened to kill her, and that's when she fires the warning shot. So, here's a couple of questions for you, Don. How about this whole idea that a threat, a verbal threat to kill somebody? Does that open a door for reasonable fear of imminent great bodily harm or death?
Don West: Well, sometimes it can if they have the immediate ability to carry through. So, for example, if someone's carrying a weapon of some sort, and you're not quite sure what they intend, and then they announce their intent by stating, "I'm going to kill you," and they had the immediate present ability to carry that out. If it's a gun, it can be almost at any distance. If it's a knife, it's relative close proximity. Then, sure, I would think so that they have by their own action and ability to carry it out put you in jeopardy and you would have the right to defend yourself up to and including lethal force if you reasonably and sincerely believed that the threat to your safety of great bodily harm or death was imminent. That would seem to fit.
Don West: It's a little fussy and a lot more difficult to assess when the person does not apparently have a weapon. The analysis is the same even without a weapon. I'm assuming here that Mr. Gray did not have a weapon. No one's ever said that he did. He maybe physically imposing, and we know that he has a history of violence. I don't think anyone has disputed that, that there has been physical violence caused by him in the past sufficient to get a restraining order, and Ms. Alexander knew that. She knew he was capable of physical violence, but she would have to assess, and then ultimately, the police and the prosecutor and to some degree, the judge if you have an immunity hearing, and then as she did, we can talk about that later.
Don West: Then a jury, whether he in fact imposed an imminent threat of great bodily harm or death and was capable at that moment and intended at that moment to carry it out. So, in roundabout way to get to your question, just because somebody says, "I'm going to kill you," even if you accept that to be true, that is not from my perspective in and of itself enough for you to pull out a gun and shoot somebody.
Shawn Vincent: In most of the cases that we've looked at, the real controversial cases usually involved armed defender who shoots an unarmed attacker.
Don West: Yes, and then all of that analysis comes in to play the relative physical capacities, the knowledge of the history, the abilities of the individuals to defend themselves. There are several notable self-defense cases where juries have concluded that the armed defender was legally justified in using deadly force against an unarmed attacker. There is absolutely no requirement that the attacker be armed.
Don West: However, the other analysis doesn't change. There still has to be that imminent threat of great bodily harm or death, and from ultimately the jury's perspective, all of that had to be reasonable. There's this overriding analysis that looks at the totality of the circumstances. That's a common phrase you hear in legal circles, the totality of the circumstances taking everything into account. Was the response to the threat reasonable? If so, then the jury should properly acquit. If they conclude it was not, even though there may have been a real threat, then they can justify a conviction.
Shawn Vincent: Sure. On this idea of the reasonableness of the fear in the imminence of that reasonable fear, this is where we get back to what we talked about the controversy about her going into the garage and then choosing to come back into the main area of the house with the gun, right? I think that went a long way to convincing a judge in the immunity hearing, and then subsequently a jury in the trial that she wasn't that afraid of him if she's willing to go back to where he was, where she had been attacked by him before.
Don West: There's that perspective how afraid was she, and I think equally important what happened in the house was effectively over at that point. There's nothing to suggest that she wasn't safe from him in the garage, at least to the extent he wasn't in the garage. She was there, she had a gun. I don't know if there was another door. I can't remember having been in a garage that didn't have a door-
Shawn Vincent: A side door or something.
Don West: ... as well as the garage door, a side door of some sort, but notwithstanding that had she gone out to the garage and armed herself and then tried to figure out where to go and what to do and reassess. Had he come in to the garage still angry toward her, I think that completely changes the dynamic of this. For her to arm herself, go back inside expecting to confront the person that she claimed had just threatened to kill her or was capable of and intended to harm her in some serious way, I think that changes the perspective and it puts her at a great disadvantage when the jury is trying to assess whether her actions were reasonable.
Don West: There's an interesting conversation to have at some point. We should get a law enforcement officer to talk with about this, but in this use of force continuum that law enforcement are taught and to some degree a civilian use of force continuum that Mike and Stan have developed, it's an interesting notion of when you introduce a firearm into an escalating event is the introduction of the firearm an escalation or is it a deescalation?
Don West: I think that it's such an interesting issue that law enforcement probably considers it a deescalation because the attempt is by-
Shawn Vincent: When an officer does it?
Don West: Mm-hmm (affirmative). Mm-hmm (affirmative). The goal at that point is not to shoot somebody, but simply to demonstrate that they have the superior force and the capability and hope that that modifies the behavior of the person that they're confronting. It might, but as we will know from other cases that we've had, it may be the very thing that causes the other person to go off. We can talk about other cases because we've had them where somebody displays a firearm expecting to deescalate, thinking the other person will back off, and it encourages them to get even more violent.
Shawn Vincent: Sure. In the cases that we looked at, we've seen a couple where the presenting of a firearm stops the conflict cold, but more often than not, it inevitably triggers a gunfight in which somebody or both people get shot and killed.
Don West: Yeah. You've just introduced fear and rage in the same mix. You're going to have a fight or flight reaction, I suspect. You're hoping for the flight of the other person, but you may very well wind up getting the fight instead. Is that what Ms. Alexander is basically saying that she made the decision. In hindsight, we can say we think it was a bad decision to go inside with the firearm. Is she saying then that once the firearm was presented, then he knew that she had it, that instead of backing off and just letting her leave as she claim was her intent, that he got further agitated and escalated his aggression toward her?
Shawn Vincent: Yeah. She says that he threatens to kill her after he saw her back in the house in the kitchen with the gun. It's clear to her that he saw she was armed, and then he threatened to kill her afterwards. That's when she decides to fire the warning shot. Something I want to talk about on this point, though, that I think is going to be relevant to the CCW Safe members is: some states are stand your ground states, and some are duty to retreat states, but what we know is that in every state, there's a version of the castle doctrine, which means that in your home, there is no duty to retreat.
Shawn Vincent: I think what an interesting thing comes up here is that even if you don't have a duty to retreat, if you do retreat, then leave the house or leave the immediate area of where the threat is, and then you decide to return to it with a weapon and reengage. Does that change the calculus on this a little bit?
Shawn Vincent: Marissa Alexander, when she talks to Mike and Stan, argues that she never left her house. The garage was still the house. It's not a detached garage, but on the same hand, I think if the garage is different from the house, it's further away from where her attacker was.
Shawn Vincent: If we look at the Zach Peters case, where the kid encountered the invaders in the kitchen, and then after he shoots them once, he goes back to his room, locks the door, and calls the police. If he had gone back out into the house and reengaged those guys, we might have a different scenario. So, what's your take on that, Don? If you've retreated from your home already, do you have a problem if you go back in to reengage?
Don West: You know it's interesting. We have a partnership with Andrew Branca who wrote the book Law of Self-Defense and regularly produces video and live content on the legal aspects of self-defense, understanding what the law is and the various jurisdictions and also the basic rules of what you should do, and what you should really avoid at all cost.
Don West: To distill this into a very simple statement, Andrew would say there's a huge difference between the fight coming to you and you going to the fight. He would say that if you go to the fight, you have changed the dynamic of everything, and you have put yourself in a legally vulnerable position, and that of those things to avoid, you should never go to the fight unless there's some other circumstance or factual need or other reasons why you had to do that to increase your own safety or to protect others.
Don West: The notion of her from a relative position of safety to going to the fight I think puts her at a great disadvantage. Whether she would lose the right to self-defense at that point, I think that's almost a discussion that lawyers would have sitting around a coffee table or in a cocktail lounge, but the lawyers don't make the decisions of whether Marissa Alexander is guilty. The jury does.
Don West: They do that by putting themselves in the position of the accused. Self-defense is pretty different than virtually any other kind of criminal defense where you are encouraging asking the jury to see what happened from the very perspective through the eyes of the person on trial, and through those eyes considering what they knew, what their background was, what their experience with this person, then all of that stuff seeing whether what happened was reasonable.
Don West: I think what that really means is when a juror looks at a case like that, they're probably saying to themselves, "I get it. I understand what she was going through. Had I been in her situation, what would I have done?" If the juror says to himself or herself, "I sure wouldn't have done that," then there's an easy way for them say, "That's just not reasonable. I can believe everything she says, but I can still find that she violated a law because it's just not a reasonable for a person to act under the circumstances.”
Shawn Vincent: Something that came up in the conversation with Marissa Alexander between Stan, Mike on their podcast was how often people who own a gun, they're concealed carriers or interested in home defense have a thought in their mind that they're reasonable people, and that should they ever be involved in a self-defense incident that it's going to be pretty cotton-dried, all the scenarios that they might pain for themselves and their mind of when they would need to use deadly force are clear, right?
Shawn Vincent: We found in all the cases that we looked at that there are all these weird little factors whether you've misperceived a detail or you've mistaken an identity or there's these scenarios you can't imagine that complicated, right? So, here's-
Don West: Right. The analysis of that is done after the fact like people in a somewhat sterile environment with all the time in the world to assess the reasonableness of the defender's conduct that probably took place in a half a second. This case, I think, more than any that we've talked about really turns on some of these little details that got lost in the media discussion that the public perception of this case is very different than what the actual facts demonstrated.
Don West: We're calling this the warning shot case, for example. It's clear that Mr. Gray was not killed, and injured as you said earlier, but we also know from the physical evidence that the shot was pretty close to his head. It was shot in the room where he was in his direction. I think it went through a wall, and then ultimately into a ceiling where the claim was that it post a danger to his children, keeping in mind not her children. It was his children. So, when she went back in the house, she wasn't there to protect her children from him.
Shawn Vincent: Right. They weren't there.
Don West: He was there with his children. So, defense of others was not an issue. So, the people that called it a warning shot felt that it was in a sense an attempt to deescalate, to prevent him from being able to fulfill his threat to kill her. Others look at it as a miss, that this was an attempted murder and a miss, which is a completely different legal context than a warning shot.
Don West: So, when I talk about little details, for example, you take a look at where the shot was fired from, where the bullet landed, and what the immediate risk was. Had that shot been 90 degrees, had it been fired into the floor of the kitchen or even into the refrigerator or someway where it was absolutely clear that it was not intended to hit him, then we have a true warning shot situation.
Don West: Frankly, I think the analysis of the case changes. Certainly, the emotional impact of the case changes. Angela Corey who was the elected prosecutor in Jacksonville at the time would be far less able to stand behind a microphone and say that Marissa Alexander fired out of anger, not fear.
Shawn Vincent: Yeah. Before we wrap up this section, this segment of our conversation, so she claims that she absolutely could have hit him if she wanted to. She was a licensed concealed carrier, she had trained with a gun. Her father was in the service for 27 years, and was a concealed carrier I believe in gun rights and self-defense. So, she's pretty adamant that it was a warning shot, but to your point, as a warning shot a few inches above and a few inches to the right of his head. So, there's some ambiguity there.
Shawn Vincent: We talked earlier about you don't brandish your weapon. You don't defensively display a weapon unless you had been justified in using the deadly force. I think we got close enough to this where we think at that particular moment deadly force was not justified. Would you say that's right?
Don West: Not to go on a side trip, but brandish is the notion of waving a gun around in a threatening way. Displaying it may be quite different than that if it's done for defensive purposes. Brandishing is a question of degree, frankly, whether it's a lawful display given the context or whether it's a crime of recklessness and threatening behavior. All of that stuff has to be analyzed exactly under the circumstances under which it arose.
Don West: People that claim they displayed the gun in self-defense could wind up being arrested and prosecuted for a brandishing type offense because the prosecutor didn't buy the story or that sort of thing, but separate and apart from that, when you draw a gun and you point it in the direction of somebody, and you fire the gun, you have committed a crime right then, a very serious crime unless you have the legal justification to do that. Firing a gun is the use of deadly force. It may be arguable that displaying a gun isn't necessarily using deadly force, but certainly, there's no doubt that firing one is.
Don West: Now, is there any legal difference between firing an obvious warning shot and shooting in the direction of somebody and missing? Not necessarily. The prosecutor in Ms. Alexander's case chose not to charge her with attempted murder, but they charged her with aggravated assault with the discharge of a firearm.
Don West: Under Florida law, when you commit the crime of aggravated assault and pulled the trigger, you have taken a crime that is a serious crime, nonetheless, it's punished by a maximum of five years in prison. There's a three-year mandatory minimum for the aggravated assault, but when you pull the trigger and discharge it in that kind of threatening way even without the intent to kill, you now have a 20-year mandatory minimum. That's in fact what she was prosecuted for, and ultimately what she was convicted of. That's how she got the 20-year sentence, a sentence that the judge had no discretion, could not impose one day less than 20 years.
Don West: Well, we'll talk more about that. I think the legal context of this case is really fascinating. I'm sorry I didn't really respond to your question, specifically, but-
Shawn Vincent: Well, this wasn't a cross-examination, so you have the discretion to go off on a tangent, but to bring it around, I think we can argue and, obviously, because this is controversial, that at that moment after coming back in and reengaging with him across the kitchen unarmed that she was unjustified in shooting him at that point.
Don West: Yeah. I think that's fair. That's certainly what the judge decided, and then ultimately what the jury decided.
Shawn Vincent: Right, and our general rule here is that if you're unjustified in shooting someone using deadly force, you're also unjustified in either displaying the weapon in an aggressive way or firing a warning shot.
Don West: Certainly, firing, and what we don't know for sure is whether the jury concluded that he didn't post an imminent threat to great bodily harm, that her claim that he was trying to kill her wasn't supported by the record. That's a possibility or that they didn't ... For all we know, they didn't agree that it was in fact a warning shot. They may very well have concluded that they thought that she just missed. The sanctity and security of the jury deliberation process unless they come forward and want to explain their thinking, they're certainly not required to. You may never know what it was that was important that pushed this thing one way or another.
Shawn Vincent: Fascinating. Well, now, let's take a quick break. I want to talk next about her post-incident actions and some things that occurred immediately after this warning shot that caused her troubling her legal defense.
Don West: Sounds good. Thanks, Shawn. Talk to you soon.
Shawn Vincent: All right.
Shawn Vincent: All right. Don, so we're talking about the Marissa Alexander case, the so-called Warning Shot Case. In our last segment, we had talked and gotten ourselves right up to the point where she fired the warning shot and Rico Gray leaves the premises. He was with his two children. They were, as Marissa Alexander explains it, at the threshold of the house on their way out when she encountered Rico Gray in her kitchen. He saw that she had a gun. She said that he threatened to kill her. She fires this so-called warning shot that was just a little above his head, and a little bit to the right, and then he leaves.
Shawn Vincent: So, then here's part of it that's amazing to me, and it's a piece of her mindset perhaps. After this happens, she doesn't call the police to report it. She figured that she fired a warning shot, he left, and that was the end of it. I'm going to play a quick clip of what she said to Mike Darter and Stan Campbell in her podcast with them.
Don West: Okay.
Mike: So, what happened? Did somebody else call the police? Did he call the police? How did that transpire after that?
Marissa: After that, he called the police. He called the police.
Stan: Yeah. We talked to our members about this all the time being the first one to call 911. Us being police officers, we always state that usually the way we look at it, the one who called 911 is the victim. Is that pretty much what happened where you had the opportunity to do so or you felt that the warning shot would be enough to back him off, and you didn't need to call the police on it?
Marissa: Right. So, that's basically what happened. To be honest with you, I didn't think I did anything wrong. I was in my home and nothing happened. So, I thought that that would be enough, and if he had come back, then I probably would have to, but at that point, that was my thinking. So, like you said the first one to call is apparently the victim.
Shawn Vincent: So, she says, "To be honest with you, I didn't think I did anything wrong." What are your thoughts about that, Don?
Don West: There's so much to unpack on that. I have to take her comment to mean that she was expressing that she indeed felt threatened, that he had expressed the intent to harm her, and that by firing the shot, she was completely legally and factually justified. So, in other words, she felt that she needed to do it in order to save herself, and that she hadn't broken any laws when she did it. I don't know how else you want to interpret a comment like that except I can offer that in many, if not most self-defense cases, certainly in all plausible self-defense cases, the person who defended and used force to defend themselves believes they didn't do anything wrong. They felt justified. That's the crux of the whole thing. That doesn't necessarily mean that you've stayed with, painted within the lines or that you're within the legal parameters and boundaries, but I think it's a common feeling that you didn't do anything wrong. You had to do what you had to do.
Don West: Shawn, I think what we're leading up to, though, is the fact that she didn't call the police. So, even if she didn't feel that she did anything wrong doesn't make sense if you accept her at her word, doesn't make sense that she wouldn't call the police to explain that she was attacked in her home, that she had to display a weapon, and ultimately fire it to prevent this guy with a history of violence from making good on his threat. Go ahead.
Shawn Vincent: I was going to ask, have you ever seen the show The Office, the American show with Steve Carell?
Don West: Oh, sure.
Shawn Vincent: Yeah. Do you remember the episode where we found out Michael Scott's in terrible debt, and somebody talks to him about the option to declare a bankruptcy and convinces him that he needs to declare bankruptcy? Then he decides that, yes, he's going to and he walks into the office and just yells out, "I declare bankruptcy." Someone has to explain to him that he can't just declare it, that it's actually a legal process. This is what I think about when I hear Marissa Alexander saying she didn't think she did anything wrong. It's like she just declared to the sky that that was self-defense.
Shawn Vincent: Listening to you talk about the ramifications of that, in that feeling that you were justified, I have to look at it like this, and maybe we'll do a thought experiment. Anytime a gun is displaying in a threatening manner, discharged in a threatening manner or used to shoot somebody, I think we should assume a crime has been committed. Now, it's a question of whether that crime was justifiable or not, right?
Don West: I think that's fair. Yes. We live in a community of very strict laws on the possession, ownership, and certainly the discharge of firearms. The presumption is if a gun is fired, something bad happened.
Shawn Vincent: Yeah, and a self-defense claim is a legal claim. You can't just say it to make it self-defense. It makes me think. We talked about the Michael Dunn case, talked about Jacksonville, the loud music trial that Michael Dunn somehow in his mind, he tells his fiance Rhonda Rouer, "Don't worry. It was legal. It was justified. It was self-defense," as some excuse of why they would speed away from the scene of the shooting and not report it.
Don West: Some of the materials in another podcasts and video series we did a while back, we talk about the aftermath of a shooting, and we talk about the reasonable responsible way to interact with law enforcement. We also talk about the importance of declaring, declaring that you acted in self-defense, that, sure, you were the person with the handgun, yes, you were the person that fired it, but that you were legally justified in doing it.
Don West: Let me digress for just a moment to put this in context. When you get to trial, the prosecutor has to prove it was not self-defense, and that's true all across the country. However, until there is evidence in the record, it doesn't take a lot and it doesn't have to be all of that persuasive, but there has to be evidence in the record in support of a claim of self-defense before the judge will recognize it and give an instruction on self-defense, which allows the jury to consider it.
Don West: Unless you get some of that evidence in the record, then the judge is not obliged to instruct the jury and the jury may not even be able to consider self-defense as a legal affirmative defense. So, there is a responsibility on the part of the accused to have some evidence, whether it's their statement about what happened or a witness' statement about what happened or some physical evidence that's compelling, that shows that the force that was used was in response to a threat, and therefore, there's evidence of self-defense.
Don West: So, for Ms. Alexander to say, "I didn't call the police because I didn't do anything wrong," in no way puts her in a position of carrying that initial burden to demonstrate ultimately at whatever stage this case got to that she acted in self-defense.
Shawn Vincent: Sure. Stan Campbell brings this up in that conversation from a police officer's perspective, whoever calls 911 first is the victim, right? So, the police come to this discharge of a firearm with only Rico Gray's side of the story. Let me play another clip from this conversation. This is from Marissa Alexander.
Marissa: Well, you know somebody at some point they were contacting me on my phone, but I did not have my phone. So, once they were able to get a hold of me, and let me know that ... I believe he told them that I had barricaded myself in the house. So, that was the time from what I understand it was a call for SWAT to come out. I had no idea because I did not know where my phone was, but when I did find my phone and my sister was like, "Hey, down here," and I was like, "Okay." I took the officer's call and he asked me where I was. I told him. I told him I was going to come out. I told him I have my hands up, one hand on the black cellphone, and one up, and just don't shoot me.
Shawn Vincent: So, the big thing I take out of this is that she believed Rico Gray told the cops that she had barricaded herself in the house, and that the police had considered calling the SWAT team to come. So, not only is there not a self-defense claim filed here, the police are acting as if they've got an armed deranged individual inside of this house, and they're attempting multiple times to call her on her cellphone to bring a peaceful resolution to this. That is the wrong foot to start off on when you're making a self-defense claim.
Don West: Yes, I agree. I think that Ms. Alexander was probably agonizing over this for a minute even though she didn't think that she had done anything wrong. Legally, she had to have know this was messed up, and that maybe she was taking that risk like when you go to Vegas and you put everything on red or you pick on number out of 30, what is it? 36.
Shawn Vincent: I don't know that. I'm a terrible gambler.
Don West: Not a roulette player. You just hope that your number comes up or you hope in someways your number doesn't. I suspect that in her mind, her best outcome was probably if nobody calls the police under these circumstances and maybe she thought that because of Mr. Gray's prior history with the law and violent history with her that maybe he wouldn't either, and hope upon hope that this thing would just go away. If that's what her thinking was, then she miscalculated.
Shawn Vincent: She made a bad bet.
Don West: Yeah, she did. As I remember, though, some of the materials, this is a very convoluted and complicated case to sort out factually because Mr. Gray gave extensive interviews and statements. In Florida, you can do depositions in criminal cases on felony. He changed his story a lot. He was against her, and then he was in favor of her. So, factually, it was really hard to get a clear handle on it. Let's not forget that his two children were there, and I think they were both old enough to be competent witnesses, whether they were good witnesses or not, I don't know, but competent meaning that they know the difference between right and wrong. They are able to know the difference between a lie and not, that they were old enough that they could testify.
Don West: I didn't read their statements exactly, but if they told the police that their dad didn't threaten to kill her, that when she came back in with the gun, the first thing she did was point it at him and fire it, and there was no actual threat, then there's a big problem with the case factually from a self-defense standpoint notwithstanding all the stuff that you and I have talked about so far.
Don West: So, without her explicitly saying what her thinking was other than, "I didn't do anything wrong," I'm going to speculate and say that she thought that maybe directly involving the police wasn't in her favor and she would hope that he didn't either. As it turns out, he gave his phone to one of his kids and it was one of the kids, I think, that called 911 to initially report it.
Shawn Vincent: That might be the case, but in what Alexander told Mike and Stan in their podcast was that essentially the father gave the statement to the police in the presence of the kids, then the oldest gave his statement, which essentially echoed what the father had said, and then the youngest was too young for them to really take that statement, so they didn't. They just did what the eldest son had said. Anyways, he had-
Don West: Well, we've had cases and I've counseled people in cases whether they should call the police under the unique facts of their circumstances. It's not as clear as you would want it to be because sometimes you have no reason to think that the other person involved is going to call the police, no injuries, maybe no shots fired, that it happened very quickly, and that you're not sure that you want to involve the police either and start admitting that you had a gun and that you displayed it under questionable circumstances. That's a very difficult thing.
Don West: On occasion, maybe from a strategic standpoint, the decision can be supported that you don't. That's pretty rare in my mind and I don't know that it's ever happened in experience when shots were actually fired at other human beings I would think. Our advice has always been get on top of that, get ahead of this because like you say, the first person to the phone is often identified by the police as the victim, and in this case, the story that the police got was the one most favorable to Mr. Gray, and then that was compounded by the lack of communication with Ms. Alexander, this notion that she was barricaded, and then by the time they actually had contact with her, this whole narrative of her being violent and armed and all of that was out there. So, she probably in some ways didn't get a fair shake in telling her side of the story. The snowball was already going down the hill at that point.
Shawn Vincent: Let me play another clip, if you don't mind, from this conversation. She talks about once she surrendered to the police with her cellphone in the air walking out with her hands up what she experienced.
Marissa: They "detained" me, and we just came out doing a proceeding, but they detained me and put me in a car, in the back of the car seat. I did not know that I was going to be arrested. I thought, "Well, okay. He was telling the truth. What happened?" The truth was not very helpful for me. So, yeah, I ended up ... Once I let him know I had a restraining order in place, I said, "Listen. This happened. Look it up." He did. He verified it, but essentially, it was their word against mine.
Shawn Vincent: Right? So, she talks about now that she's surrendering to the police, and we've just been discussing how she surrendered to the police who have the other side's version of the story that's not kind to her, she starts talking to the police about what happened. She said, "Tell them the truth," but the truth wasn't on her side. When she says that the police detained her, she says in the way that has air quotes around it, where she feels in retrospect that she was under arrest from the beginning, even though they didn't tell her that she was. At a certain point, she realized she was in trouble.
Shawn Vincent: She's not doing a great job now. She's behind the ball at getting her narrative out there once Rico Gray and his kids have already told their side of the story.
Don West: I agree with that assessment. At that point, I think that probably from the very beginning that she should have taken the initiative and obviously in hindsight it's very easy when you see what this case turned out to be an absolute nightmare for her. We'll talk in another segment, I hope, about some of the legal process that she found herself in, and what was driving that, and how very, very quickly she was completely out of having any control over her life. She didn't write the laws that impacted her to the extent that she could have handled it differently at the beginning. She didn't.
Don West: Then pretty soon, she was at the mercy of a very aggressive prosecutor. This became a political case. It was in the midst of other things happening in the media. This was going to trial around the time of the George Zimmerman-Trayvon Martin case that had started with the shooting in 2012.
Don West: This turned out to be a really big deal. When we sit here at our kitchen tables or wherever we happen to be at the moment and look back on it, it's easy for us to say what might have been different. I'm not criticizing Ms. Alexander. What I'm trying to do is point out at those moments when a different decision from our perspective may have resulted in her being treated differently, the case being viewed differently and possibly even a different outcome.
Shawn Vincent: Sure. That criticism is an opportunity to learn lessons from her mistakes. Before we wrap up this segment and start talking about what her legal challenge looked like, which we'll do in our next podcast episode, one thing I think is fascinating about the self-defense cases is this first encounter with law enforcement because we say that we want you to be helpful and courteous to the police. We want you to make yourself defense claim, but we also don't want you to talk about a lot of details about the case or about what your experience was before you have a chance to meet with a lawyer, and do so only with their council, right?
Shawn Vincent: That's easy to say, but you and I sat with Stephen Maddox, who gave in-depth recorded testimony, interviews with police about his experience and he knew intellectually that you shouldn't talk to police, but he also felt that he was absolutely justified. He was the one who called the cops, originally, and felt like he was making his claim and supporting his decision.
Shawn Vincent: So, it's one thing to say don't talk to police, but a whole other thing to now have been part of the shooting to believe you're correct to feel now the weight of law enforcement coming on you and wanting to seem like the good guy.
Don West: Being in that position having been involved in a self-defense incident whether it meets the high standard ultimately, checks off all the boxes that it was legal self-defense, we're talking about those especially using deadly force where shots are fired. I think when a shot is fired, whether it's characterized as a warning shot or a miss or something in between, it fundamentally changes the nature of the case.
Don West: We've had lots of cases where guns were displayed, threats may have been made, but it's a whole different category when somebody pulls the trigger. I think law enforcement looks at it differently. I think the entire criminal justice system looks at it differently because when the bullet leaves the barrel of a gun, it's death in the air. If it hits somebody, there's a high probability they will die as a result of it.
Don West: When you are involved in a situation like that, you can expect that you will be considered a suspect, truly a suspect. The police don't know what happened. They're working on limited information when they respond. If you weren't the one that called the police, they have some misinformation, no doubt. Certainly, they have one-sided information and for an individual to subject themselves to the investigative process on their own without the benefit of council is a highly risky and, in my view, a foolish thing, not just because of you don't understand how the system works. People that are friendly aren't necessarily your friends, and you won't understand the meaning, the real meaning of the questions. You won't know how to modulate your answers to say what's true without saying things also that could be construed or misconstrued as harmful.
Don West: Plus, you've got the trauma that you've just gone through destroying your perception and making you perhaps feel that you really, really, really need to explain yourself, but we know in the Maddox case is the perfect example that you're not going to be very good at it.
Shawn Vincent: So, he is in accurate about simple things like where did he live and how many children does he have-
Don West: Yes. Here's a guy-
Shawn Vincent: ... that you couldn’t possibly get wrong.
Don West: Super professional guy, highly educated, lots of life experience, and you wouldn't know that he's so wrong when you listen to the recording. You would think this is a guy who's telling it like it is and yet when you go back through it, and you pick out some of these things, you'll realize just how much of what his statement was was a byproduct of that traumatic experience he'd been through. Frankly, some of it was simply unreliable. The most obvious being when he got that kind of stuff wrong.
Don West: So, if we're going to take Ms. Alexander's situation and try to get some lessons from it, she should have called the police. I think that's pretty evident, and maybe said as little as, "I was attacked by my husband. He threatened to kill me."
Shawn Vincent: "I have a restraining order."
Don West: Yes. "I had to fire a shot to keep him from killing me. Fortunately, nobody was injured, but I wanted you to know that," or what have you. Then once the investigators and the detectives get there to conduct a formal interview, you do as we've always said which you provide the basic information enough to stake your claim of self-defense, and then you acknowledge that you will continue to cooperate, but you'd like the benefit of council before a formal interview.
Shawn Vincent: Law enforcement will understand that.
Don West: Well, that's the law, and they do understand it. They will acknowledge or respect it. If for some reason they don't and they try to trick you or come at you a different way, then what you say should not be admitted in the court against you. That's the whole notion of Miranda Rights.
Don West: Secondly, you cannot be compelled to make a statement against yourself or you can't even be compelled without court process to make any statement at all. The idea is that you have the right to make a statement or not at your choosing, and if you want to make a statement, you certainly should have the benefit of council in such a high stakes circumstance.
Shawn Vincent: It's a really difficult position to be in, but I think the lesson from all this is that you have to, and this is from the first segment, too, where Marissa Alexander said she didn't really think she had done anything wrong. If there's a discharge in the firearm in self-defense, you have to assume that you've committed a crime until it can be demonstrated that it was self-defense, and that you have to interact with a police as if you're the suspect of a serious crime or else I think in our case, nine times out of 10 it's going to blow up in your face and cause you trouble down the line.
Don West: I think that's fair and good advice. In this case, it wouldn't have taken much of an investigator to walk inside the house and take a look at where the bullet entered the wall and positioned the people, and immediately conclude that she fired at him. He may have been or she may have been wrong about that, but the physical evidence becomes an incredibly important part of this.
Don West: Having been through a traumatic situation, self-defense shooting, you're simply not going to be presently aware of all of the things that are important, the things that you may very well need to think through carefully to be able to explain convincingly when it's time to do that. It's so easy if you decide to give a detailed statement before you've processed it and digested it and better understood what the legal issues are, what's important and what isn't for you to make a statement that you simply can't recover from.
Don West: I've said this before. I'll repeat it that I've tried a lot of self-defense cases. Frankly, the ones that are the hardest to try are the ones when we have to explain what the client said to the police and why that isn't accurate or why it wasn't complete or why, frankly, it wasn't lying if it was inconsistent.
Shawn Vincent: Yeah, a nightmare. Well, that's a great preface for the long legal road that Marissa Alexander faced after the shooting. So, let's call that quits for today, and our next podcast is going to be dedicated to the torturous, twisted legal odyssey that she went through after that day.
Don West: Thanks, Shawn. Looking forward to it. Talk to you soon.
Shawn Vincent: All right, Don.
In this episode CCW Safe National Trial Counsel Don West interviews Las Vegas based Criminal Defense Attorney Andrea Luem. They discuss how the criminal justice system works, the realities of working inside it and things people should consider when choosing a criminal defense attorney should the worst ever happen to them.
Don West and Shawn Vincent continue their discussion of the Michale Drejka trial. Topics include Drejka’s statements to police, his decision not to testify, and what was learned from jurors who spoke to the Tampa Bay Times after the guilty verdict.
TRANSCRIPT:
Shawn Vincent: Hey, everybody, this is Shawn Vincent. Thanks for listening in. I'm excited about the podcast today. Today is the second part of my conversation with Don West, he's CCW Safe National Trial Council, on the Michael Drejka case. So if you remember Michael Drejka is the parking lot shooter out of Clearwater, Florida. He was getting into an argument with Brittany Jacobs over her parking in a handicapped parking spot, a disabled parking spot.
Shawn Vincent: Markis McGlockton, that's Jacobs’ life partner, the father of her children, came out of this convenience store, saw this dude arguing with his girl. He walked up to Drejka quickly, without notice or warning, he pushed him to the ground violently. Drejka pulled his licensed concealed carry pistol, and he aimed at McGlockton, who was at this point standing over him in kind of an aggressive posture. He paused for a minute.
Shawn Vincent: The video shows McGlockton take half-step back, a real slow retreat. And then he fired. That shot struck McGlockton in his heart. He stumbled back in the convenience store, fell to the ground, died at the feet of his five year old child. At first there wasn't an arrest. After some more details came out, the prosecutor charged him with manslaughter. A year and a half later, little over a year later, he goes to trial, convicted for manslaughter.
Shawn Vincent: Don West and I watched that trial. We had a lot of things to say about it. And in today's podcast, we're going to talk more specifically about the statements that Drejka made to police, and why if you're ever approached after a self-defense shooting, you shouldn't say much without the advice of a lawyer. How those statements can be used against you, whether that means you have to testify or not at trial. And we're going to look at the jurors in this case. In full disclosure I helped, I contributed in a minor way in the jury selection of the Drejka case. I helped research the jurors, and vet them to make sure that they were qualified for trial. They spoke to the Tampa Bay Times, and they give us some pretty interesting insight into what happened behind closed doors in the jury room, and how they rendered that decision. There’s a lot of great lessons for concealed carriers from that. So, thanks again for listening in. Here's my conversation with Don west on the Michael Drejka trial.
Shawn Vincent: Here's one thing that we tell CCW safe members all the time, and that's after a self-defense shooting. Don't make detailed statements to cops, without the presence and advice of a lawyer.
Don West: Right, just as a quick refresher, generally speaking, if you're involved in a serious self-defense incident, there will be a responding officer, maybe in response to your own 911 call, which you should keep in mind is being recorded and available as evidence down the road.
Shawn Vincent: Right.
Don West: You'll be interacting with a responding officer, who will want you to tell him or her what just happened. You will likely be detained. Certainly, you'll be detained at the scene for officer safety. You may be detained and taken to the police station for further questioning. You may or may not actually be arrested at that point. We don't need to go into the nuances of that. But it's likely at some point, either that evening or shortly thereafter, a detective with the police agency, who has now been fairly recently assigned to the case and getting up to speed-
Shawn Vincent: A homicide detective.
Don West: A homicide detective, yes, will want to talk with you in detail about what happened. So the general advice is that you provide enough basic information to orient the responding officers, you clearly state that you acted in self-defense because you were attacked, telling them where any evidence that may not be obvious might be, if describing the attacker or attackers if they fled. Providing the basic information that helps the police officers know you're not a threat, that you are defending yourself.
Don West: Then if being requested to provide further information, say you're happy to cooperate, but you want a counsel present. Same thing with the detective, where you ask for a counsel to be present during any sort of detailed debriefing, and there's lots of reasons for that. Part of it is legal: Why would you subject yourself to the questioning of a trained investigator, without having a trained professional helping you? You certainly are clearly at a disadvantage.
Don West: Secondly, you may very well say things in a way that you don't intend to say, because you haven't thought it through, or you felt the need to come up with an answer instead of reflecting on it. Then the trauma of the event itself. You will have undergone a life threatening circumstance, which will affect your judgment and your decision making, it will affect your perception. And it's commonly said, police officers will get a couple of three days in between the use of force incident they're involved in, until they're asked to be fully debriefed.
Don West: And that's the recognition of how difficult and how traumatic that experience is, and how it can make you unreliable when you're otherwise doing everything possible you can to tell the truth.
Shawn Vincent: So you and I had a chance to talk to Steven Maddox, that was the CCW safe member who was charged and prosecuted. You were instrumental, I think in his defense, and I got a chance to help pick the jury on that. And Stephen told us that he was trying to answer questions honestly to the investigators there, but he got things wrong, like the number of children that he had, or his address, because he was so affected by the attacks that he had endured and the stress of the shooting itself. And he wasn't intentionally trying to deceive, but he got things wrong because he was in an unfamiliar emotional state.
Don West: Keep in mind too, that the investigator has a very clear role in this. They may have already decided that you're guilty. So they may be just looking to confirm things they believe they already know, and getting you to try to incriminate yourself. Others may be more genuinely looking for information, without having sort of prejudged the situation, but the rules are different.
Don West: The police can try to trick you and deceive you and lie to you about things during this interrogation process. So if you respond to that, if you become defensive, if you say things that can make you look guilty, that's going to be permanently recorded and available to use against you. I really believe that sometimes the hardest job of the defense lawyer representing an innocent person is to-
Shawn Vincent: Undo what they did.
Don West: Undo. Yes, yes. And I can think of several cases that I've been involved in, or worked on in some capacity, where it was an hour or two hours or longer into this extended interview, before the suspect even knew that the person they had shot had died. That's not a fact that's offered very often, certainly not very early, because they know how that changes the entire picture. And Maddox was one of those. Maddox didn't know for two or three hours that his attacker was dead.
Shawn Vincent: We talked about the Michael Dunn case; the Michael Dunn interrogation tape is fascinating, because Michael Dunn felt like he was justified at first, although he knew he messed up by leaving the scene. But there's this point in the tape where he realizes how much trouble he is in, and he is being nice to these guys, these investigators. He's like, "All of a sudden I don't feel very good." And the homicide officer is like, "Yeah, I bet. Because you messed up dude.”
Shawn Vincent: But it's that moment where... and I feel like a lot of self-defenders feel they're justified. They have no doubt to themselves, that they were justified, and see the law enforcement as their friends in this. That the criminal is the other guy that I had to shoot, and now I'm talking to you like we're bros here. Right? We're on the same side, because we're both against that bad guy. And then it sinks in potentially later that, "Wait. I'm the bad guy. Or they might be thinking of me as the bad guy." Because you in fact, committed a homicide. But let's look at it in terms of the Drejka case. Drejka gave pretty extensive video tape statements to law enforcement.
Don West: That's right. And they became featured in the trial, of course. So during that interview, he recreated, reconstructed the events, even with a demonstration. He answered all of the questions. And if you look at that recording, it appears to me that he was genuinely trying to answer the questions, honestly, from his perspective, that he used some language that the prosecution made a lot to do with... that he said was kind of cop talk.
Shawn Vincent: Cop talk like?
Don West: I don't know if that was or not, whether he was trying to act like he was a police officer, but that certainly is a good example of how... or act like a police officer, or just being sure that he was clear in what he was saying. But nonetheless, the prosecution made a heyday out of that, looking for any tiny little thing that could be exploited and turned against him. And there were lots and lots of those examples.
Shawn Vincent: When you say cop talk, you mean like this, he quotes this 21 foot rule?
Don West: The 21 foot rule probably falls into that category. What I was referring to specifically, was he might answer a question that would call for a yes or no answer. And he would say, "Negative." As opposed to, "No."
Shawn Vincent: I got you.
Don West: That kind of talk. But since you mentioned the 21 foot rule, that of course, was also featured in the trial. His comment referenced the 21 foot rule, and the prosecution had a heyday with that, and featured an expert witness, whose primary purpose it seems to me, was to make Drejka look bad by talking about how Drejka was wrong, the way he talked about the so called 21 foot rule.
Shawn Vincent: And the 21 foot rule is essentially, is mostly for law enforcement, right? It's how far away someone is, that they can still get to you, and the time it would take you to unholster your weapon, drop the safety, and aim and fire. Right?
Don West: It's interesting, I imagine anybody who has taken any kind of self-defense class, or probably even a concealed carry class is going to hear about the 21 foot rule. And it's unlikely that they will understand clearly what the research actually was when it was done, how it was done, what you can draw from it and over time. And of course, through the mouths of different instructors in different circumstances, it becomes all sorts of things.
Don West: One of the purposes of calling the expert at the trial against Drejka, was I think, to show that Drejka misunderstood what the significance of that is. And I think it's arguable, I think it's pretty clear, that the expert got it wrong, or at least the expert focused on some aspect of that, that wasn't completely accurate. It wasn't completely forthcoming.
Don West: Let me just take a second, and I'm certainly no expert on this. I've gathered some information on, and I know generally, what you've said, Shawn, is correct. And that is, the notion is that if someone is attacking you, that by the time it would take someone to draw a weapon -- so this is someone that has some skills, and some training to draw a weapon, prepare it to fire, put it on target and fire it. The actual drill was two times. That person can easily cover about 21 feet.
Don West: So that means basically, if somebody has an edged weapon, or a blunt instrument, a baseball bat of some sort, and they're 21 feet or closer in front of you, and they intend to seriously injure or kill you, they can cover that distance in about a second and a half.
Shawn Vincent: So faster than you can get your gun out, the idea of, they're inside that circle.
Don West: Yeah.
Shawn Vincent: Your decision making is over at that point.
Don West: So the value of knowing that is, generally speaking, someone can be a lot further away than you would think, and still get on top of you and kill you, before you have an opportunity to defend yourself.
Shawn Vincent: Sure.
Don West: So in general, that's the notion behind it.
Shawn Vincent: And Drejka brings this up, because he's on the ground on his back and this guy is just a feet away from him.
Don West: Yes, he's clearly less than 21 feet. And I think what Drejka was trying to illustrate is that, he was well within that zone of danger, that meant that, if McGlockton intended to come over and kick him in the ribs, kick him in the head, stamp him to death, continue the violence that he had initiated by shoving him to the ground, he was close enough that he could have done that before Drejka could defend himself. That's the sense of it.
Shawn Vincent: Yeah. To get back to your cop talk conversation, you and I have both been involved in cases where the prosecutors have tried to use the defendant's knowledge of self-defense against them. Almost as in, you know these rules and you're trying to work around them to justify a homicide. Do you agree with that? Am I explaining that properly?
Don West: Yeah. Let me back up just a little bit and say that, when someone is involved in a self-defense shooting, the jury is asked to look at that incident through the eyes of the shooter, of the defender. And that includes, knowing what the defender knew. And that necessarily incorporates what their training may have been as well, good or bad. It incorporates what they might have known about the attacker. Did they have information beforehand? Was this guy was violent and aggressive? Did they have a beef?
Don West: All that kind of stuff is allowed to be looked at by the jury, in deciding, was there a fear of great bodily harm or death? And then ultimately, was that fear reasonable under all things known to the defender? So that's where this notion of there's the subjective view of the evidence, and that's through the defenders eyes, as the jury looks at what the defender saw, and knew, and then there's this objective view, and that's kind of this reasonable person test. The jury looks at, was it reasonable for him, knowing all that he knew and seeing it as he saw it to act the way that he did?
Don West: And I think in large part, that's the jury saying, what would I have done if I had been in that situation? So the training is legitimate. The problem is, sometimes it gets exploited. And I think, by the prosecutor and I think that's what happened here. Drejka was basically accused by the expert of the state, the prosecutor, of not knowing what he was talking about, when he mentioned the 21 foot rule.
Don West: The prosecutor's expert made a big deal, that this research that was done was based upon an edged weapon only, and that McGlockton didn't have an edged weapon. So nothing that Drejka said made sense. I think that's an overly restrictive view, because an edged weapon is a deadly weapon, but so would a baseball bat be at that point. And that doesn't change anything.
Shawn Vincent: Yeah.
Don West: Do you care, particularly if you're stabbed? Or hit in the head with a baseball bat? I think not. Both of them are going to do you harm. So I think that was frankly disingenuous. The background is, it's called the Tueller drill. The research was done by Dennis Tueller. I think it goes back to the '80s, trying to understand better what this dynamic was. And the research was duplicated over the years, that it became pretty much the standard. That's why it's called the 21 foot rule.
Don West: That is, that it takes... that a person can cover the 21 feet in about a second and a half, which is about the time that it takes to draw and fire a weapon by a trained person. So the mindset is that, if the person is 21 feet or closer, that you're in big trouble at that point, because once they get their hands on you, if they have a knife then you're done.
Shawn Vincent: I guess the lesson here is, if you rely on that rule and the police investigators are talking to you after a self-defense shooting that, that's something you want to save to talk about with your lawyer, as your lawyer can decide that, that's now one of your defenses, justifying the shooting. And I think anything that-
Don West: I think that's right. I think Drejka was inarticulately trying to explain his thinking, trying to reconstruct the events in his mind. And he had heard that from a class or read about it and thought it might help him to throw it in. Just like he thought it might help him to talk to a police officer in cop talk, because that's who he was talking to. It wasn't like he was at a cocktail place.
Shawn Vincent: Right.
Don West: And those two things backfired in the sense that the prosecutor made hay, and unfortunately, I don't think that the defense lawyers were particularly effective at blunting that or explaining it further. So in a sense, the prosecutors went there and got away with it. And the jury had sort of a bad taste, I think about Drejka, and this whole, this picture of who he was.
Don West: Now, we know that the only picture that the jury got of Drejka came from the witnesses that talked about the prior incident, when he had threatened a guy over a handicapped parking spot, the prior bad act stuff, the witnesses at the scene who described his manner after the fact as almost being matter of fact, which didn't help very much, and what he said on the statement. He didn't testify.
Shawn Vincent: Yeah, they didn't put Drejka on the stand to explain to the jurors, what his mindset was. They ended up relying on this recorded testimony.
Don West: And we could talk for an hour about what's involved in making that decision, as a criminal defense lawyer, if somebody testifies, why they don't. Let me say, first of all, that a defendant has the absolute right to testify if they choose. It is their choice and their choice alone. Of course, they would like the guidance of counsel to help them make that choice. But that's not a decision the lawyer can make for them, unlike other legal decisions.
Shawn Vincent: Mm-hmm (affirmative).
Don West: So the fact that Mr. Drejka did not testify was his decision with the counsel, and advice, obviously.
Shawn Vincent: Was an informed decision. Yeah.
Don West: Yes. In fact, I think in most cases, the judge will actually address the defendant outside the presence of the jury and ask him if he intends to testify, or if he had chosen not to at that point. Whether he understood he had the right to, whether it was his decision, whether he needed more time to talk about it for trying to protect the record, so that, if there's an appeal down the road that, the defendant doesn't come say, "Well, I didn't know I had the right to testify." Or, "My lawyer told me I wasn't allowed to." Those kinds of things, as a fundamental right.
Don West: And Drejka elected not to testify. Now, keep in mind that, by the time he would have made that choice, the prosecutor had already decided to offer the recorded interview into evidence. They did that during their case, during the prosecution case, and that was their choice. They didn't have to do that.
Shawn Vincent: Sure. In fact, in the Dunn case, they waited until the rebuttal argument to play the recording, after they Dunn testified.
Don West: Because Mr. Drejka voluntarily gave that statement, and it was otherwise admissible, it gave the prosecution the choice to play it in their case or not. It was not a choice that the defense had.
Shawn Vincent: Yeah, that's an interesting point. You need to emphasize, because you can't just offer pre recorded stuff about the defendant to testify, or I'd say evidence if you're the defendant.
Don West: That's right. Mr. Drejka, in order to get his story in front of the jury, if the prosecution hadn't offered that recorded statement he gave to the police, Mr. Drejka would have had to take the stand. Now, that statement could have been used by the prosecution as cross examination, or as impeachment. All or parts of it may possibly have been introduced, but not by Mr. Drejka. He doesn't get the opportunity to offer a prior exculpatory statement, and evidence in lieu of his testimony.
Don West: So a lot of the legal commentators wrestled, when they were looking at this case. Should the prosecution offer it? Or effectively, should they force Mr. Drejka to take the stand? And that was a strategy decision, based upon a number of things.
Shawn Vincent: Sure.
Don West: They would have had to evaluate their case, and decide whether they thought it helped them or hurt them.
Shawn Vincent: And then when you look at the contents of that, there's one segment of it where he's recalling to the officer what happened. His perception was that, Markis McGlockton, after Drejka pulled out the gun, either stayed still or stepped towards him, in direct contrast with what the recording showed. So all of a sudden, you have the defendant making statements that, whether maliciously intended, are untrue, based on the evidence.
Don West: They are inaccurate. Yeah. So it's clear that, his perception of that was wrong. It's a question I suppose, and the prosecutor gets to play with that too. Was he just wrong? And that makes it unreasonable. Or, was he lying about it? Which makes it evidence of guilt. So I assume they figured they could box him in that, since it was evident from the tape that McGlockton was backing up. I think that's a reasonable construction, when Dr. Drejka said he was actually coming forward to him, that puts the prosecutor having his cake, and eating it too. Because they get to make the reasonableness argument at the end, which they did over and over and over again.
Don West: I thought it was interesting, too, the way that Drejka explained the situation, because when he was challenged a little bit by the interrogator, by the investigating detective about McGlockton coming toward him. He actually said to Drejka, "What if there was information that he wasn't coming towards you, that he might actually even be backing up?" And Drejka said, "Then I couldn't shoot him. I wouldn't shoot him. In fact, I wouldn't shoot him or I couldn't shoot him, even if he was just standing still, much less coming toward me."
Don West: So in some respects, Drejka knew where the boundary was, that had he recognized that McGlockton had stopped or was retreating, he knew that he would not legally be allowed to use lethal force, because the attack was not imminent at that point.
Shawn Vincent: So interesting, and he seemed to me credible, when he said that. I believed him.
Don West: Yes, I didn't get the usual markers that you look for somebody that's lying about it, and trying to get away with something. No, I believe that's at least the way he was explaining it, what he thought and that was sincere. And of course, another interesting dynamic of self-defense is that the threat has to be perceived as real and actual. But it doesn't, in fact, have to be real. That you can be mistaken about certain things, as long as your perception of the threat is reasonable and that your response is reasonable.
Don West: I think where the prosecutor kind of wove the way through this was that, they kept pounding on the idea that McGlockton had stopped, and he had actually taken a step back. So that not only was there not an actual threat at that moment, but Drejka's perception, even if you gave him the benefit of the doubt, was so wrong, that it was unreasonable for him to think there was a threat.
Shawn Vincent: That's right. So if you're going to be wrong about a detail, if you're going to misperceive, the jury has to believe that you misperceived it.
Don West: And that it was reasonable.
Shawn Vincent: Yeah.
Don West: I really think that's where they put themselves in the case, where they look at it through your eyes as the defender, but then they also step back and say, "What would I have done in that situation?" This is an interesting case because there were some jurors... well, it was interesting because you had the video, and rarely do you have the video that shows the crucial moments leading up to and after shooting, but then there was media coverage. So you could see it gavel to gavel, and see how the lawyers presented this case, their strengths and their weaknesses.
Don West: I like to armchair quarterback and second guess. So I'm sitting there saying, "Wow, that was pretty good. I'm not sure I could have done it that way." Or, "Wow, that was terrible. I wish that I was there to ask those questions." Or where I thought evidence was available that wasn't sufficiently developed, especially knowing that he wasn't going to testify.
Shawn Vincent: We'll be right back with more of my conversation with Don west, to include a look inside the jurors’ minds. And the conversation about whether concealed carriers are compatible with vigilante justice.
Don West: We write a lot about... we talk a lot about self-defense. I write for CCW Safe, a lot about self-defense, and sometimes I get people who are angry at me, or challenge my point of view on some aspect of self-defense and what's justifiable, what's not justifiable. My answer always is, "I'm not telling you what I think. I'm telling you what my experience has been with what juries think." And in the end, if you're a self-defender, if you're a self-defense shooter, it doesn't necessarily matter what you think about whether or not you're justified. It's going to be in the hands of the six to 12 people, who come from all walks of life, and what they think.
Shawn Vincent: And in the Drejka case, a number of the jurors spoke to reporters afterwards. And that's going to give us a little bit of insight into what they were thinking. And obviously, we haven't mentioned this yet, but Drejka was convicted of manslaughter after a six and a half hour jury deliberation. And in my experience, six and a half hours is not bad. That means that they gave it some real thought.
Don West: I think that's a good comment. I think that, while there were a handful of witnesses that testified, and certainly a handful of physical exhibits that were on their way in it, this was not a particularly complicated case to unravel. It wasn't a document case, where there are thousands of documents to sort through or tons and tons of expert testimony that really mattered much in the scheme of things. So for this jury to deliberate, to just sort through the information and then the no doubt, sometimes agonizing process of trying to figure out what's right, what's lawful, what's fair. Six hours is certainly a tribute to the system working, I think.
Shawn Vincent: Yeah. And so an article from the Tampa Bay Times that covered the trial extensively, when they spoke to some jurors, said that, it was about 45 minutes to an hour in, that they took their first poll. And they said that the jurors were split between guilty and not guilty at that point.
Don West: I don't think that's uncommon and a difficult or a close case, and certainly there's nothing wrong with it. It's encouraged that one of the things the foreperson, once chosen, would do, and once they get settled down and have everything with them, and they're ready to start, there's no reason not to take a sort of a preliminary look at how people feel. And then they can start the hard work of people explaining it, and people having enough of an open mind that they're willing to re-look at things or reconsider, and -- only to comment that, sometimes the hardest thing to figure out is how to apply the law to the facts.
Don West: Once you've got the facts sorted out, the jury is supposed to do that, figure out which witness is believable, what evidence is reliable, and sort of get a handle on what happened. After they do that, they still have to then apply that to the law and figure out whether a crime was committed. And if so, what crime? In a self-defense case, it's not an issue of who committed the crime, but rather was a crime at all committed? And then they've got to dive into the deep end of the law, and as hard as the Supreme Court who drafted the instructions and the trial judge who conformed them to the trial itself, that's no easy task. Those instructions are often very difficult to truly understand, and to apply to a challenging situation.
Shawn Vincent: Sure, for the case in point, there is one jury question that came out to the judge and to the lawyers. And that was the jury asking for clarification on what reasonable doubt meant. And reasonable doubt, that's the fundamental thing a juror needs to know when they're deciding guilty or innocent, or guilty or not guilty, right?
Don West: Yeah, that's kind of the bottom line, isn't it?
Shawn Vincent: Yeah.
Shawn Vincent: It's always funny. You and I talked about, how we felt about this case and we put ourselves in the jurors shoes. And we know an awful lot about the law of self-defense. And you mentioned something that's in the instruction for reasonable doubt. And that's this idea of a vacillating conviction. You know what I'm talking about?
Don West: Yeah, let's back up a little bit. Now, this was a criminal trial in Florida, which means that, whatever the rules are in Florida are the rules that apply to this case, as opposed to a federal case that could take place in any federal court around the country, where the rules are basically the same. So what I'm saying is, every state in their state criminal courts would have their own set of jury instructions, that have been crafted over the years by their courts.
Shawn Vincent: Yeah.
Don West: So they are different from state to state. The concept is the same, the reasonable doubt standard is the same, but the language that's used to try to explain it changes. Some is better than others, frankly. The courts, the trial judges, are really, really hesitant to change the language of those core instructions. They basically just read it the way it is, and don't deviate from it. And if the jury doesn't quite get it, it's really hard for the judges to do much about that, other than just read it again.
Shawn Vincent: Yeah, that's what happened here. They said, "Listen, it's written down." He has got to go figure it out.
Don West: So from the reasonable doubt standpoint, I don't have it in front of me just sort of by memory. Having heard it a few times, is that a reasonable doubt is explained in the jury instructions more what it isn't than what it actually is, because how do you actually define it? And there's no easy, clear way of doing it. So one of the instructions that's given is that, it's not a forced doubt or a speculative doubt. It's not a possible doubt. The prosecutors love to latch on to “it's not a possible doubt,” meaning it's possible that you could wake up tomorrow and there could be six feet of snow in Florida.
Don West: Well, yeah, we understand that. But the instructions go on to say, even if you have no reason -- let's say, if you have an abiding conviction of guilt, and that's kind of old language, I think. Who uses abiding these days?
Shawn Vincent: The Dude.
Don West: But nonetheless-
Shawn Vincent: The Dude abides. The Big Lebowski. But yeah, I get your point.
Don West: That's Jeff Bridge's moment in the sun, isn't it? Of course, he has a few.
Shawn Vincent: Sure, but that's our favorite by far. Yeah. An abiding conviction.
Don West: An abiding conviction of guilt is as close to the instructions as you get them saying, "If you believe there is no reasonable doubt." So meaning, if you have an abiding conviction of guilt, but one that waivers or vacillates.
Shawn Vincent: Yeah.
Don West: Again, pretty old language, the waiver not so much but vacillates. So if you have an abiding conviction of guilt, but it wavers or vacillates, then you don't have an abiding conviction.
Shawn Vincent: Sure. And it takes-
Don West: That's another way of saying that, if that's a reasonable doubt, then we know the standard is, if there is a reasonable doubt... some places say, "A doubt to which you can assign a reason," which is kind of the tail wagging the dog.
Shawn Vincent: Mm-hmm (affirmative).
Don West: Then the jury has this sort of mash, kind of a mash up of stuff they take in there and try to figure out what that means, and how to apply it to the case.
Shawn Vincent: Well, here's how the jury approached that problem. They had that first poll at 45 minutes to an hour in. That meant, for the next five and a half hours, they were hashing it out. One juror said that -- this 11 seconds of surveillance video, in this case, they said they re-watched that 11 seconds hundreds and hundreds of times. It was the key piece of evidence obviously.
Don West: Sure, it was. Whatever that was, for better or for worse, that's what drove the decision, don't you guess?
Shawn Vincent: I do. We talked earlier about the motions in limine, and how the prosecution won the right to show that video in slow motion. But one of the jurors actually says that, one of the witnesses talked about how that's not a accurate representation of what happened. So the video they watched over and over again was the full speed video. So I'd give the jurors a lot of credit for that.
Don West: You should. That they just didn't sign on to one side or the other from the beginning and run it through. Certainly, the prosecution showed it to them, because they were allowed to, in slow motion, but that the jury was so conscientious that they realized, maybe that wasn't the fair thing to do. Maybe that was not the due process that Michael Drejka deserved. They didn't succumb to that in the jury deliberation room. That's powerful stuff to me that the system works.
Shawn Vincent: But here's a quote here: “It really came down to the fact that once the gun was drawn, he the victim retreated. 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.” Is there any statement that you can think of, that defines this case much better than that?
Don West: No, that's right on the money. That's the moment of truth, so to speak.
Shawn Vincent: Gosh, that kind of takes your breath away, I think, if you're a concealed carrier. And you come to terms with life or death and freedom and prison. Right? That it comes down to this pause. Right? The sheriff of Pinellas County said, "That pause gives me pause." That's what kept him from charging, or making the arrest originally. But then, you get this juror that watches that hundreds of times. I don't know how many times you watched it. I've watched it at least 40 times in my analysis of this. There is that moment. There's that moment of reflection. Maybe, if he hadn't paused, he has a different case.
Don West: How incredible is that? If he had actually fired sooner, nothing else changing, if he had fired sooner, the jury may have felt that he didn't appreciate that McGlockton was retreating at that point. Now, of course, they may very well have said, that he didn't have to fire so fast. He had the situation under control by virtue of displaying the firearm. And then you start getting into the nuances of this so called 21 foot rule, right? Or, how quickly could McGlockton react to that?
Shawn Vincent: Yeah. Here's another juror -- a quote from them that I think is interesting, "I think he had the opportunity not to kill him." And that's an interesting thing to think about. Right. And that speaks kind of like it's a duty to retreat, or an ability to retreat. The juror says there's an option not to use deadly force here. What they were saying is that they didn't think that the threat to Drejka was imminent, or reached the level of force that would justify lethal force, right?
Don West: That's a beautiful, beautiful assessment of the case by the juror. It touches on all of these elements of self-defense in a way that is particularly human, if you think about it. It's in our genes to preserve human life. You preserve your own, but you preserve everyone else's too, as long as you can. That he didn't have to do it. And if you heard the prosecutor say, unreasonable, or it wasn't reasonable, one time, it was said 50 times. And that's this notion that he didn't have to do it. Because he did, it was unreasonable.
Shawn Vincent: Sure. And another part of that is, we're looking at it from the law, but we're also putting ourselves in the shoes of the defender, right?
Don West: I feel bad for McGlockton. I mean, what a tragedy. A guy, not quite 30 years old, I think, who was shot and killed and no longer on this earth. He has young children. He was in a long term relationship with Brittany Jacobs. He did some stupid things. He exercised really bad judgment. He was high. But in his mind, he was coming to her rescue. He did it illegally and wrong.
Shawn Vincent: But of course battery is never punished with executions, right? We don't execute people for battery charges.
Don West: Exactly. I also feel bad for Drejka, of course. Because he made equally bad decisions. He stuck his nose in something that wasn't really his business, at least not in a confrontational way. He could have handled it very differently and still made his point. Shawn, I was struck by the testimony that Brittany Jacobs told Drejka, when he said, "You don't have a parking permit. What are you doing in this parking spot for handicapped?" There were no other people using that spot. There was another one available, I think. And her response was, "My guy or my husband is in the store. As soon as he comes out, we will move. There are a couple of young kids."
Don West: So she wasn't agreeing, but she wasn't being particularly defiant either. She just was saying, "Look, it's just not a big deal, because I'm going to move as soon as he comes out." It wasn't like she parked there and left. And there wasn't any immediate use for it. And Drejka, that wasn't good enough for him. He didn't say, "Whatever," and walk away. He continued to escalate it. And of course, that's the problem.
Don West: You get two confrontational, aggressive guys in something, one that's not hesitant at all to be physical and the other who's armed. And by the Williams rule, I guess the prior bad acts stuff we were talking about, arguably, is looking for a reason, itching for something. Man, you've got the makings of a bad outcome, and that's what we had here.
Shawn Vincent: Yeah. We have a quote I want to talk about from another juror. That the law says... we have this one who said that, she didn't think that it was necessary. He had the opportunity not to shoot, right? And that's not necessarily the legal stuff standard. But, we ask a jury to put themselves in the shoes of the defender, right?
Don West: Yes.
Shawn Vincent: Even if we know that he misperceived it. You've talked about before, legally, you're allowed to misperceive it, as long as you are honest about that, and you are still reasonable under that perception to act, right?
Don West: Well, I guess, rather than perception, you should use the threat. The perception of the threat. The threat itself does not have to be real. So in other words, you're allowed to make certain mistakes. Part of that, if you fast forward to the Amber Guyger trial in Dallas, where she's went-
Shawn Vincent: She is the one who went to the wrong house and shot the occupant, thinking he was a burglar?
Don West: That's right. She made a huge mistake. Her perception of the threat was wrong. But that does not prevent her from melting an effective self-defense claim. There were other problems in that case, but-
Shawn Vincent: Which I can't wait to talk to you about, by the way, on another day.
Don West: Yeah, that's going to be interesting stuff. The threat doesn't have to be real. The perception of the threat has to be reasonable. So in other words, other people are going to have to say, "Yeah, I would have seen it like that too."
Shawn Vincent: And here's what this juror said. He said, "I had a hard time seeing what he saw." So here's a juror who watched this 11 second video hundreds of times. And even though Drejka gave statements to the police that were recorded and shown to the jury, saying that from his point of view, he was moving forward, that this juror said, "I just didn't see it. I had a hard time seeing what he saw." It's tough to overcome.
Don West: It is. Yes. And I think that juror was being honest with-
Shawn Vincent: When he said something like, "I had a hard time seeing what he saw," meant that he tried. Right?
Don West: Mm-hmm (affirmative).
Shawn Vincent: He tried to see it the way he did, and just couldn't, when it came down to it, when he had to make the decision.
Don West: In some ways that gives Drejka the benefit of the doubt. That's kind of what this whole notion is, with the prosecution burden having to disprove self-defense beyond a reasonable doubt. When the juror says, "I tried to see it the way Drejka did, but I couldn't," that tells me that he was genuine and sincere in his role as a juror.
Shawn Vincent: Yeah. So going back… the lessons for the concealed carrier, there's a ton of them in this case, but the ultimate lesson that we always come down to is, I think this one juror said it best, "If you have the opportunity not to use lethal force, you got to take it." Legally, you should take it. Because that's going to... if the jury thinks you had an opportunity to avoid it, whether the law says it or not, they may hold that against you.
Don West: Yes, that's a fundamental and a valuable lesson to learn. That's a direct window into how jurors look at these hard cases. And that's a valuable lesson. There are of course, lots of other lessons too. And the obvious lesson is, if you're the guy with the gun, you may just want to mind your own business.
Shawn Vincent: Well, isn't that a huge lesson in this? Because, they made hay in the... like, although that spot was painted handicapped, it wasn't an official city designated handicapped spot, that she wouldn't have gotten a ticket for parking in that spot. We talked over and over again that, if you are armed, if you choose to carry a concealed, then you sort of have an obligation to avoid unnecessary confrontations.
Don West: One of the arguments that the prosecutor made and I thought he made it effectively is that, Drejka was the guy with the final solution. So he didn't have to care about putting his nose in other people's business, or how far he took this thing, because he knew he was equipped with the final solution. That scares the hell out of most jurors, don't you think?
Shawn Vincent: I think so. We talked a little bit about doing his recorded statements with cops. He had this quote unquote “cop talk.” And we encountered this in Zimmerman. I've seen it before. It gets brought up in some self-defense cases, where they project a law enforcement mentality on the defendant. Right? If you're defending your home, that's one thing, but if you're out, seeming to be enforcing parking permit law, or somehow patrolling the neighborhood, if that was the suggestion.
Shawn Vincent: Cops are trained to be armed, and to approach people who are breaking the law, and citizens are not. So I think, if you're armed and a private citizen and you put yourself in a position where you're encountering a would be criminal or some code violator, then you're not trained like a cop necessarily. And you don't have the legal standing. You're just putting yourself in a potentially no-win scenario.
Don West: There's certain hot button descriptions that, words that are just thrown out there because people know the kind of reaction that they cause. And in a firearm incident of some sort, if you throw the word “vigilante” out there, you've just pushed all those hot buttons that makes everybody-
Shawn Vincent: Bristle.
Don West: Yes, yes. And that was the word that was used for Zimmerman of course, and that's the word that comes to mind with Drejka. It's easy to paint him as the parking lot vigilante.
Shawn Vincent: Yeah.
Don West: That's a lot of ground you have to make up, if you're trying to defend that guy, if that name gets associated with him and sticks. And just like any other scenario where you're having to overcome a negative perception right from the beginning, associated with somebody who arms themselves, goes out and sticks their nose into other people's business.
Don West: By the way, let me say, Drejka did nothing illegal, except when the jury determined that he committed the crime of manslaughter. Up to that point, he didn't commit any crimes. He just exercised questionable judgment. And it's not against the law to go up to somebody and express your displeasure at the fact that they are parking where they're not supposed to be. You can raise your voice and call them names as long as you're not threatening in some way.
Don West: But that's all protected by the First Amendment. The first crime in this scenario was committed by Markis McGlockton, when he shoved Drejka to the ground. But that would not have happened, and no way justifying what Markis McGlockton did. But that would not have happened had Drejka just let it go and backed away, anyway.
Shawn Vincent: But that's what we talked about, when you are armed and you enter a conflict, you can't control what the other person is going to do. We see these dominoes fall to so many scenarios, where the shooting becomes almost inevitable.
Don West: This is an expression that one of the guys at CCW Safe used just offhand. I don't know where it came from. We were just talking about some self-defense scenario. I don't remember if it was even one of the ones in the news, but something that he knew about, and we talked about. He just kind of shook his head and said, "When assholes collide."
Shawn Vincent: Right.
Don West: It's a little descriptive or overly descriptive, but at the same time, man, does it say it all.
Shawn Vincent: Yeah. And you and I have talked about before that, when you carry a concealed, then you give up your right to be an asshole. If you want to be an asshole, don’t bring your gun, right?
Don West: Good enough.
Shawn Vincent: I think that's the final word, Don.
Don West: One of my favorites, one of my favorites.
Shawn Vincent: All right. Thanks again for taking the time to talk.
Don West: Enjoyed it, Shawn. This has been a fascinating discussion. It's a fascinating case. It's as you point out, one that you can come at from many different perspectives and learn so much about it. I greatly enjoy talking with you about these cases. It makes me think about stuff I haven't thought about in a long time, or thought about in a particular way. And I think whether you're visualizing yourself in a restaurant and wondering who could be coming through the door, and how you might react if somebody approaches you in a parking lot, trying to figure out what their intentions are.
Don West: Anytime you see something in your mind and discuss it from beginning to end, you're going to come out at the other side, better prepared to deal with it if it actually happens.
Shawn Vincent: I agree, Don. So thanks again for going through that exercise with me.
Don West: Thank you Shawn. Look forward to the next time. Bye, bye!
Shawn Vincent: Bye.
Don West and Shawn Vincent use the Michael Drejka parking lot shooting case as a vehicle to explore the different phases of a self-defense trial. It’s important for concealed carriers to understand how the justice system works, should they ever be prosecuted for a self-defense shooting.
TRANSCRIPT:
Shawn Vincent: Hey everybody, this is Shawn Vincent. We've got a little something different for you on today's podcast, In Self-Defense. Usually our podcasts are focused on conversations about high profile self-defense cases, and Don West and I look for the lessons learned for concealed carriers. The whole idea is to have you guys learn from the mistakes that other people made in their self-defense cases so that you can avoid the tedious fight that comes after the first fight. That's the legal ramifications of a self-defense homicide.
Shawn Vincent: Don West, if you don't know, is National Trial Counsel for CCW Safe. He's been a criminal defense attorney for more than 30 years. I worked with him first on the George Zimmerman case. He is an amazing attorney. He is super diligent. He's hard-nosed. If I were ever in trouble with the law, I'd want Don West on my side. And as CCW Safe member, you're lucky enough to have him on your side too, because should you ever be involved in a self-defense shooting and have to call CCW Safe, there's a real strong chance that Don West would be a part of your defense. He's an amazing guy. I love talking to him about these cases.
Shawn Vincent: Recently we sat down to talk about the Michael Drejka case. You might remember the Michael Drejka case is the parking lot shooter from Clearwater, Florida. He was arguing with a woman named Britany Jacobs over a handicapped parking spot. He didn't think she should be parked there so he was giving her the business. Her man, the father of her children, came out of the store, saw Michael Drejka arguing with his girl. He came up to him, in fact, real quickly. He pushed him to the ground rather violently. He tumbled backwards.
Shawn Vincent: Markis McGlockton moved in, he lorded over Michael Drejka’s prone position. He hiked up his shorts in an aggressive manner. Michael Drejka, a concealed carrier, a licensed concealed carrier, pulled his pistol from his waistband. He pointed it. He aimed. He paused for a second. There's a surveillance that shows Markis McGlockton back up a little bit, but it's not a dramatic back up. And then there's a single shot fired. McGlockton stumbles back into the convenience store, and video from inside the store shows him fall, clutching his chest, and he dies at the foot of his five year old son.
Shawn Vincent: That's the case that we were talking about. And before we got into talking about the lessons learned, like we usually do, we went off on about a one hour tear about how the trial unfolded. We had a chance to watch this, Don and I, on Court TV. Once upon a time Court TV was a cable channel, but now it's a website that is constantly streaming, sometimes very interesting, trials. They streamed the Drejka trial gavel to gavel as they say. Don and I in our respective home offices watched a lot of it, some of it at the same time. We texted each other like school children when we saw something that particularly got our attention, and knew that we'd have a lot to talk about once the trial was over.
Shawn Vincent: But we also, while we were watching it realized that it's a great opportunity ... If you've never seen a trial from beginning to end you might be surprised to see how justice in America, in the American criminal court systems works itself out. And we thought that the course of this trial might be a great example for concealed carriers who might not ever have been inside a courtroom, certainly not as a criminal defendant, to have an inside look at what the process of being prosecuted would look like from the arrest to the charging to pre-trial motions and hearings, and then the anatomy of a trial straight through to the verdict, and then potentially even the appeal that comes afterwards.
Shawn Vincent: So our next podcast is going to be about the lessons learned from the Michael Drejka case. But today we have sort of a nerdy inside baseball look at the anatomy of a trial, featuring national trial counsel for CCW Safe, veteran criminal defense attorney Don West. So I hope you'll forgive us a little shop talk. I think you'll find this informative, and here's our conversation.
Shawn Vincent: You and I were talking about how the average defendant, the average client that we interact with isn't versed in just what the sequence of a trial is, or how a trial unfolds. And I think we watched this happen on Court TV, and we're going to talk about the different stages of this trial and how they're important. Maybe it's worth talking real quick about what those phases are.
Don West: Well I think that's a good idea. Chances are this is the first time, certainly our members or anyone who is in a self-defense case of some sort is going to have been in court. Maybe a traffic ticket, but those don't even result in court typically. So let's take a minute from the top and I'll run through the stages of a criminal trial quickly. Touch upon a couple of the key aspects of each, and that'll sort of set the stage and paint a picture of how this Drejka case went, but frankly how every criminal case is going to go for the most part.
Don West: In every jurisdiction that I know of, except for the smallest kinds of infractions, the police can't formally charge anyone. It's always the district attorney or the state attorney. The prosecuting authority reviews the investigation and then makes a formal charging decision. So when you talk about being charged, that's what I'm talking about, a formal charging decision by way of indictment or information is also a valid charging instrument in many jurisdictions.
Don West: The police can place charges. In other words, that's what you get arrested for. You'll be told at the first appearance what you've been arrested for. The bail will be set or not set based upon what you've been arrested for. But those are not formal charges. That case is to be reviewed and then the formal charges will be determined, if any, by the elected or appointed prosecutor, not the police department.
Don West: From arrest and formal prosecution sets the stage for the investigation phase, it's discovery it's often called where police reports are provided, witness statements. The guts of the case from an information standpoint is exchanged. The defense typically has some reciprocal obligations. It sets the stage for evidentiary issues pre-trial. Maybe there is a statement that was made by the accused that the defense thinks was improperly given, maybe without Miranda rights, or under circumstances that make it suspect. So there could be a motion to suppress the statement. There could be a motion to suppress evidence that the claim was it was illegally obtained, without a warrant, or with a defective warrant.
Don West: There are often motions in limine. Limine basically means just to limit certain kinds of evidence. And that's pretty common, especially in self-defense cases where there may be information that one side or the other wants to offer because they know that it's going to flavor or color the way other evidence is taken. And frankly because they know it will be prejudicial. They know it will impact the accused or the prosecution's case. So it could be in favor of the prosecution, against the defendant, what have you. So the parties will sort through that. One of-
Shawn Vincent: And just to add color to it. In this particular case the surveillance video that we talked about, it shows the shooting itself, but then it actually shows Markis McGlockton come back into the store. And there's video that shows him fall to the ground clutching his chest, capsizing over, and dying while his five year old little boy watched. And the prosecution, when they wanted to show the surveillance video wanted to show that part. And the defense argued vehemently against it, saying that it doesn't have anything to do with whether or not he shot him justifiable, and it's just going to be tugging at the heart strings of the jury and be prejudicial.
Don West: That's an excellent example, and it explains fully why certain evidence is attractive, because the impact of it is pretty obvious. But also why a criminal case shouldn't be decided on emotion, sympathy or anger. And that would be an example of how the prejudice was far greater than the probative value. That's sort of a test that the judge is required before admitting all evidence, even if it's otherwise admissible. If it's otherwise relevant, whether the probative value, meaning the importance to the case, outweighs the prejudice.
Don West: So if in balance the judge decides that even though the video in the store provides information, it shows for example where Markis McGlockton was, where other people were in the store at that moment. It obviously doesn't impact directly on that moment around the shooting, it's clearly after the fact. But it has high prejudicial value because it's a human being in agony shot, and in the last moments of their life. It's very hard for anyone to disregard something as powerful as that in their deliberation. So there was a motion in limine filed. The judge ruled appropriately, that that video would not be presented to the jury, so that's a very good example of it.
Don West: There are other motions in limine, which are pretty typical in a case involving self-defense where a picture of the accused is painted by the prosecution that extends far back or even forward of the event itself. And frankly that could be of the victim of a shooting, of the deceased.
Shawn Vincent: And when you say a picture, you mean not a literal picture but showing other acts, character evidence of things that they've done in the past, right?
Don West: Right. Who is this person and what do we know about them? How do they present themselves to the world? And we know Facebook is out there. We know Instagram is out there. We know neighbors and relatives and coworkers are out there that know this person, know how they present, and may know of actual incidents in their past that helps paint this picture that we're talking about.
Shawn Vincent: And that's relevant in the Drejka case because we know that he had a confrontation where he allegedly brandished his gun and threatened to shoot a guy who drove a septic tank truck in that exact same parking space at that exact same convenience store some months before. And in pre-trial hearings they argued that point, and the judge decided that that was so similar to the actual event where Markis McGlockton was shot that he was going to allow that in. Where there are other alleged road rage incidents in Drejka's past that weren't similar enough and the judge chose to not allow those in.
Don West: Yes. The judge had to examine each of them individually, look at the legal standard for admissibility, weigh the prejudice against the probative value. And the relevance, that's part of the issue there when we're talking about situations that occurred before or after that the prosecution typically wants to offer. And the explanation offered by the prosecution, why is this relevant? It's because it helps the jury understand something. Sometimes it's identity, is there an M.O., an identity of the people? We don't have an identity issue in this case, but we may have an intent issue. We may have a question was it an accident that all of this happened.
Don West: And frankly in a self-defense case there's this overriding umbrella of reasonableness. And for the jury to understand whether Drejka's actions were reasonable the prosecutor wanted to use this prior incident to basically show that he was-
Shawn Vincent: Well you have to get into his mind.
Don West: Yes. Exactly right. So that was an incident occurred a few months before, as you said, with Richard Kelly. He was driving a septic truck I think and Drejka confronted him, approached him. But I think probably where it crossed the line, Drejka apparently said, "I could've," or, "I should've shot you," as part of that conversation.
Shawn Vincent: Yeah he called the guy's boss on the how's my driving number and said, "Your employee's lucky I didn't blow his head off."
Don West: Yeah. So that, in virtually anyone's mind, is pretty outrageous conduct. It certainly may suggest an irresponsibility, hotheadedness, lack of reasonableness, especially for someone that we now know carries a gun and would've been more than capable of doing such a thing.
Shawn Vincent: But all this illustrates, the lesson here is that so much ... You can win or lose a trial before you even get to the courthouse on the first day of trial if you didn't play these pre-trial hearings right.
Don West: Well you know this is a perfect example of what looks exactly like that path. Here's the sheriff, based upon the limited information at the time of the event, doesn't think there is probable cause. And then pretty soon after that as this information rolls in, the prosecutor decides to file charges. And now on top of all of that there is this, we call it in Florida, William's Rule, or it's under the evidence code 404B section, 90.404B.
Shawn Vincent: The prior bad acts law.
Don West: The prior bad acts. And I tell you as I read the news and I've talked to colleagues, as we followed the progression of this case, once that stuff came out and then once the judge decided to let it in, knowing the jury would hear it, it became a completely different case in my mind.
Shawn Vincent: Yeah. And you know it was when the judge decided that the prosecutor would be allowed to play the surveillance tape in slow motion, which changes the whole perception on the intent and his time to reflect and the immense. The key to self-defense is the imminent threat. Well, you play an imminent threat in slow motion, it doesn't look nearly as threatening anymore. I thought that was prejudicial to the point where that was the trigger that caused me to call the lawyer and say, "I'm willing to help you help pick a jury in this."
Don West: That's another example of a motion in limine. It was clear that the videotape was coming in, or at least the central parts of it. And then the question became how would it be presented to the jury. Would it be presented in a way that would add information to help them make their decision? Or would it be, again, prejudicial and inflammatory. The argument was, as you just laid it out, that if it's played in slow motion it distorts reality.
Don West: It makes it less fair for Drejka if the jury is trying to evaluate his split second decisions when they have all the time in the world to look at it in slow motion. And they lost. The judge said, "No, it's coming in like that." So the jury got both the bad act of the prior incident at the parking spot, and then they also had the opportunity to look at the video in slow motion repeatedly.
Shawn Vincent: Right. And I know if that were your case and you had the resources, and Drejka wasn't injured in defense and only so many resources. But you'd want to get an expert that could talk about ... You might want to be able to qualify a video expert to talk about what the difference between slow motion and real time is, potentially. That didn't happen in this case. I guess what I'm trying to illustrate for the listeners is just how much goes, every little fight that goes into just what's going to come into the court, how it's going to be seen. And then what you can actually say about that evidence, because now you have to mitigate the slow motion video for the jury.
Don West: You know people shake their head when I tell them ... I'm representing someone or I'm involved in consulting on a self-defense case, yes, it's going to take a year, a year and a half, maybe two years on a serious shooting to get the case in court. And they say, "What are you guys doing all the time? You playing golf and working on this in your spare time?" And just touching on some of these evidentiary issues, the consultation with experts, the investigation, the assessment and strategy, and then ultimately getting it into the court prior to the trial even starting to get this all sorted out takes a lot of time. It can be a full-time job almost for a year.
Shawn Vincent: For just one case. Well case in point we started out to talk about the phases of a trial and for the last 10 minutes we've been talking about pre-trial. So let's get us up to the day of trial. We've gone through all the pre-trial hearings. Sort of the week before trial I reached out to the lawyers and offered to help vet the jury, which is using public records and social media. I have a team that I work with for lots of trials to go look and see what do these folks reveal about themselves online, so that the trial team can make smarter decisions during jury selection and perhaps find evidence that would either confirm or contradict what they learn about these jurors in open court.
Shawn Vincent: They agreed, were happy to have my help. And I told them that afterwards that I still plan to continue to talk about this case. So they didn't give me any insight into what their defense strategy was. I don't know anything really that the public doesn't know about this, but I thought it'd be fair to disclose that, for the sake of due process, we were involved in this one.
Don West: Well I think that's a good disclosure, but it also ... An appropriate one, but at the same time it is a very interesting line of conversation for us because in your work, not necessarily on this case, but you have been able to find, through social media and other public available information sources, clear information that directly contradicts what someone says in court. And in some instances the juror can be confronted with it, and disqualified as a result.
Don West: Other information that you find is perhaps more subtle and not so much contradictory, but it compliments the lawyer's efforts to figure out who this juror is, how strongly they feel about certain things. And from my sort of devious mind as a trial lawyer, you find out things about jurors that unless the prosecution is doing the same thing, doesn't necessarily know. So you may very well have a more complete picture of a juror than what's being said in court, a complete enough picture that it helps the lawyers decide whether they think an individual juror is going to be favorable.
Shawn Vincent: Well case in point, in a self-defense case, if we find evidence that somebody is a gun rights advocate or a concealed carrier or a member of an organization like CCW Safe or the NRA, and the prosecutor doesn't think to ask that question, well we're certainly not going to ask it in open court. We're just going to file that as good to know, and that's an advantage.
Don West: So, without too much of a detour, thanks Shawn. I think that's valuable insight and your role in this Drejka case, while it was limited as you described, no doubt I guess was similar in that you've had in other cases, where you did learn information. You were able to communicate that information to the trial lawyers, and they factored it in as to ultimately who was on the jury.
Don West: I guess one more quick detour, and that is in jury selection, the lawyers do not get to choose the jurors they want. The system is designed to eliminate the jurors they don't want. And it's usually two stages, one is cause challenges. So if there's some part of the juror's picture that disqualifies them because they're obviously biased or they might know some of the participants or it's clear they can't be fair, they can be challenged for cause. And the judge would strike them without any limit on the number of jurors that can be released that way.
Don West: And then there's a number of what's called peremptory challenges. Those are the discretionary challenges that each side has to eliminate a juror for almost any reason, as long as it's not based on race or religion or something that would violate the Constitution. There's no reason why you can't get rid of somebody because you have a bad feeling or you don't like the way they matched their clothes that day, or the way they looked around the room when you were asking them about certain things. So yes, those are the peremptories, but at the end of the day you are not choosing the ones you want, you're getting rid of the ones you don't. And then you wind up with those that are on the jury.
Shawn Vincent: Yeah. Your jury can't be any better than the panel of folks who come in at the beginning of the day. And you're going to pick the ones you don't like. The other side's going to knock off the ones they don't like, which may very well be your favorites. And then what you're left with are, in Florida usually six folks, often 12 folks who are going to sit in judgment.
Don West: Well if the jury investigation, and if the voir dire it's called. It's pronounced many different ways, V-O-I-R D-I-R-E, French term. Basically the process of questioning the jurors. If that goes the way it's supposed to, then each side is going to eliminate the jurors that they think favor the other side. And that's what's so remarkable, if at the end of this process if there are good lawyers with good information you look up and you see the people that are left that-
Shawn Vincent: Nobody's happy.
Don West: That nobody wants, that's right. Obviously the goal is finding fair minded jurors that can follow the law. But obviously if you can find somebody that you think favors your defense, as a defense lawyer you want to do everything you can to try to keep them. In a shooting case the firearm possession, self-defense itself are all big hot buttons. And then if you add some other components, a race issue. Is there a race difference between the shooter and the deceased? That enters into it. In fact, you have to use the jury selection process to cull through all of that.
Don West: And at the end of the day you want people at a minimum that are going to be able to make their decision based upon the law and the facts without being influenced to the point of it affecting their verdict on those other extraneous things. And people are people. People are the sum of their experiences. So a lot of the jury selection is trying to divine what those experiences are and how we think they may impact their ability to make a decision.
Don West: And you also start looking at the dynamics of the individuals. You look for the people you think may be the leaders, may be the person that is the foreperson of the jury because they can affect the vote as well. They can perhaps persuade weaker or less convinced jurors to go one way or the other. That in and of itself is maybe the single most important part of the trial, the more I do this I think.
Shawn Vincent: The jury selection?
Don West: Yes. In terms of the ultimate outcome.
Shawn Vincent: Yeah. And I've seen focus groups. I've got to participate in focus groups where you're behind the one way glass and they're there and they talk about the case that was presented. And very quickly a dominant personality or two rise up, and they run the show sometimes. And their impressions become difficult to overcome, so that's fascinating.
Shawn Vincent: So okay, so we've picked a jury. And in the Drejka case, the whole case was done ... It started on a Monday morning and ended late in the evening Friday night when they had a verdict. It took a week, and they spent half of it, two and a half days just doing jury selection, rooting through people because it was a high profile case. Making sure that they were honest about what they knew about the case and that they could-
Don West: As well, in a high profile case where there's a substantial percentage of the venire, of the group out there that's going to be questioned to select the jury panel. When there's a lot of those folks that know about the case, often there has to be individual, sequestered questioning, individual sequestered voir dire. And that just takes a lot of time. That's where all of the other jurors are removed from the courtroom and the juror being questioned is there asking questions from the judge and the lawyers, especially on the issue of publicity. Because their answers, if they know a lot about the case, may very well otherwise taint jurors that hadn't known that much. So you just have to go through all those steps to be sure that the jurors don't impact each other, and that you get honest straightforward answers in the individual ones that you question.
Don West: So I can go through the next phases pretty quickly, I think, without as much discussion. And the next phase after jury selection is opening statement. For the defense, and frankly for the prosecution it's optional. It's almost always done, not by the prosecution, and not always by the defense. I'll explain that in a minute. But that's the opportunity-
Shawn Vincent: And we know from experience they can go from a couple minutes to a couple hours.
Don West: Exactly right. So the goal there is to give the jurors a preview of the evidence, and to some limited degree maybe touch upon some of the legal framework of the case. It's clearly not the opportunity to argue the case. It's really to introduce them, almost a roadmap of where they think the case is going to go. The defense typically has the opportunity to follow the prosecutor with their opening statement. And in a lot of places they can reserve that, saying that we're not going to argue now, we'll wait until we're ready to offer our case and then we'll give our opening statement. I've done that a few times.
Don West: In a self-defense case, though, I don't think I would ever consider that. A self-defense case means, as we've talked about, you did what they accused you of in that you defended yourself by using force against another individual, but you were justified in doing it. So I think you have to get that out there right up front and explain in detail why that's the case, keeping in mind that the prosecution goes first because they have the burden. And they carry that burden beyond a reasonable doubt throughout the case, which is why they then put on their evidence first.
Don West: The defense has the opportunity to cross-examine witnesses, but in the prosecution case doesn't call witnesses. After the prosecution rests its case, meaning they're announcing to the judge, to the jury that that's all the evidence they're going to offer. Evidence could be witness testimony. It could be physical exhibits, pictures, photographs. It could be opinion testimony by experts, experts are the only people allowed to offer opinions about certain things, that the judge determines will be of value to the jury. And then they rest. Typically the judge at that point is allowed to dismiss the case if he or she is convinced there's just not enough evidence there to move forward, that doesn't happen very often.
Shawn Vincent: Hold on a second there. So two things is my experience, especially in criminal defense, is that most of your real heavy lifting is going to be done during cross-examination, during the prosecutor's case. Am I wrong at that?
Don West: That's the first opportunity that the defense has to get evidence before the jury. Now I know technically the defense isn't offering evidence because they aren't calling the witness, but it is evidence in the record. So it is evidence the jury can consider. And I've certainly seen cases won or lost, no doubt I've won or lost cases by the effectiveness of cross-examining the state's witnesses. Yes I think that's the heavy lifting because ... Well it's the heavy lifting in that your job as a defense lawyer is to be vigilant. And you are allowed by court procedure to ask leading questions. You are allowed to be probing and confrontational.
Shawn Vincent: When you say a leading question, that's when you say, "Isn't it true, Doctor, that the drug in his system was seven times the limit?" You can ask a question where the answer is built into it, and they have to say yes or no. Whereas the prosecution has to ask direct questions that are more open, and give them a chance to testify more freely. Is that the difference?
Don West: Yes, on direct examination, that's the questioning offered by the party who calls the witness, is supposed to be open ended, so that the answer to the question isn't suggested by the question itself. And the purpose is so that the lawyer isn't telling the witness what to say. On cross-examination, its adversarial. This is a witness who has offered evidence that is against the accused, so there's an opportunity to challenge those statements. And I think maybe as importantly that people don't always think about in cross-examination when you're challenging facts, is that's the opportunity for the cross-examiner to expose bias or prejudice, or motive, or some reason that the witness may have to favor one side.
Don West: For example, it's common ... well I'll take an obvious example. If there's an expert witness called to offer testimony that turns out to be in favor of the prosecution, the defense will explore what that relationship is.
Shawn Vincent: How much you're getting paid.
Don West: How much you're getting paid. They'll explore how many times have you testified for the prosecution and not for the defense, obvious stuff. But bias and prejudice is pretty much open season. If you can show a prior relationship with the witness and some other party, if you can show some motive. I had a witness in a case who was an expert witness who was talking about this process, this analysis that he did. And it turned out during cross-examination that we learned that this process that he was expounding on as being reliable and valid and accurate, happened to be a process that he sold and got paid for. So talk about a guy who's biased.
Shawn Vincent: Right. He's marketing his product while he's testifying.
Don West: Another example of exposing bias or prejudice is virtually everywhere if a witness has a prior felony conviction. And sometimes even for misdemeanors the existence of that felony, and sometimes the circumstances surrounding it can be revealed. The idea is if someone is a convicted felon they have ... What? I don't know how you'd explain it, some lesser moral standard, some lesser abidance to the truth, but nonetheless the jury is allowed to know if one of the witnesses is a convicted felon.
Shawn Vincent: Because they're going to decide how much credibility to give to his or her testimony.
Don West: That's what the judge will tell the jurors at the end. They get to decide who to believe, and they don't have to believe everything a witness says. They can believe parts of it and not parts of it. It's an enormous, enormous task for the juror to sort through all of that stuff in a setting that they're typically not familiar with, to figure out who's telling the truth.
Shawn Vincent: So you're about to get us to where the defense takes over and presents their case. But you talked about ... you didn't use these words, but this is where the defense can give a judgment of acquittal argument, right?
Don West: At the end of the prosecution case the defense would make a motion to the judge asking for the judge to dismiss the case on various legal grounds, primarily that there isn't enough evidence to support a conviction.
Shawn Vincent: Hey Judge, they didn't meet their burden.
Don West: Right. And the burden isn't at that stage to satisfy the judge beyond a reasonable doubt, but that there is sufficient evidence in the light most favorable to the prosecution. So if it could go either way the prosecution gets the benefit of the doubt at that stage. And the judge rarely will dismiss cases, but I've also-
Shawn Vincent: Have you ever seen that happen? Have you ever seen a judge grant a judgment of acquittal?
Don West: Yes I have. It's not the usual thing. I will tell you though, Shawn, a number of years ago I tried, as a defense lawyer, a first degree murder case. There were two guys on trial, first degree murder. And at the end of the state's case I made a motion for judgment of acquittal, and the judge courageously I think, because it takes a lot of guts to do this. He said, "I am not satisfied that the evidence against your client is sufficient to support a conviction," and dismissed the charges.
Shawn Vincent: Which meant that your guy is a free man at that instant.
Don West: He went from facing a mandatory life sentence to walking out the door, yes.
Shawn Vincent: That's incredible.
Don West: It's a comment on how bad the case was, frankly, but also how courageous the judge is. Very few judges ... And frankly, especially in a high profile case. The one I'm talking about, nobody cared about particularly, I don't think. And I don't mean that in-
Shawn Vincent: There wasn't a lot of public pressure on the judge in this case.
Don West: Correct. I don't mean disrespect to anybody involved in it, and certainly not to the family of the deceased. But it wasn't a case with cameras in the courtroom, and there was going to be no ripple effect in the media because of it.
Shawn Vincent: Right. To speak to the point of how rarely they're granted, we were watching the trial coverage and talking on the phone a lot while it was happening. They didn't even show the argument for judgment of acquittal. I think the commentators were talking about the case. It happened real quickly and wasn't even talked about on television. They just skipped right over it and got right to the defense presentation.
Don West: I'll tell you one more quick war story about that stage of the case, the judgment of acquittal. Prosecutors are sometimes accused of overcharging. And what I mean by that is that with the facts and the law that would apply to a given incident, the prosecution has a wide variety typically of charges to file. Commonly, they file the highest charge they feel like they can support. But sometimes charges are filed for which the evidence might be somewhat questionable, even though there might be a more solid charge for a lesser offense.
Shawn Vincent: Sure. I've been involved in murder cases where the charge was first degree murder, and our whole argument to a jury was just that, "No, this is second degree murder."
Don West: Yes, exactly.
Shawn Vincent: That was the whole case we're trying to make.
Don West: Mm-hmm.. And without going into those details now, there's a huge difference to the accused whether he or she is convicted of second degree as opposed to first degree, in terms of sentencing discretion and such. Well this self-defense case I was trying was a serious case, it was a lethal self-defense shooting. My client was on trial, he had been charged with second degree murder. And at the end of the state's case I argued, very aggressively, because I really believed that even in the light most favorable to the state, meaning most favorable to the prosecution, second degree murder wasn't established.
Don West: And the judge was very serious about it, listened to the arguments, reflected on it, reviewed the cases. And we spent quite a while at it, and at the end of all of that the judge agreed and didn't dismiss the case, but dismissed the murder count and essentially reduced it to manslaughter. So when the case went to the jury, instead of having second degree murder, manslaughter, or not guilty to consider, they had manslaughter or not guilty. So you could imagine how that might affect the way I presented the defense in the case. All of a sudden the murder charge was off the table, now we would focus on manslaughter or nothing, as opposed to hoping that the jury wouldn't convict him of second degree murder, but maybe compromise if they wouldn't acquit him of manslaughter. We took that away. So I was able-
Shawn Vincent: Yeah it's a much different case.
Don West: Much, much different case. And this was a nice guy involved in a terrible situation. Had to shoot a guy who was unarmed, frankly, who was very violent and attacked him. So we had that built in argument, brought a gun to a fist fight kind of thing. And without belaboring the point or going into much detail, at the end of that process the jury acquitted him. So he went from second degree murder, which would have most likely resulted in a life sentence or most of his life, to walking out the door and going home.
Shawn Vincent: Yeah, extraordinary. All right. So judgment of acquittal, it works, it doesn't work, you get charges reduced, you get it dismissed, or more likely the judge says, "No, keep going." As a defense attorney you can decide whether or not you need to make a defense presentation. And very often I've found the defense presentation is shorter than the prosecution's presentation.
Don West: Well as we've touched on before and we'll emphasize here now, in a criminal case the prosecution has the burden of proof. They have to convince the jury of guilt, which means on each and every element of the crime charged that there's enough evidence of guilt to establish proof of that guilt beyond a reasonable doubt. And a very valid and commonly employed argument by the defense is, "Sure there's some evidence, but there's just not enough evidence to eliminate reasonable doubt." So the argument is the evidence is insufficient.
Don West: So at the end of the prosecution case, when the defense decides what to put on, assuming they have evidence to put on. They are in no way legally required to offer any evidence whatsoever. And without any evidence by the defense the jury's role is the same, to decide if the prosecution has proven the case beyond a reasonable doubt. I've tried lots of cases where I put on no evidence at all, and that means I didn't offer the accused's testimony either.
Shawn Vincent: Sure. The only time in a criminal defense trial that the defendant would testify would be during the defense presentation, and only if the defendant chooses to do so. He's not required to do so.
Don West: Absolutely right. Not ever compelled, that's the Fifth Amendment at play. So gauging how well the prosecution case was presented, the defense will evaluate their case. It happens very quickly of course, because you can't control the witnesses the prosecution puts on. You certainly hope you are effective in cross-examination, but you can't truly control that. And then you start looking for holes to plug and better arguments to make. And I've been involved in cases where we had, shoot, 30 or 40 potential witnesses that we could call, and for reasons that were developed during the trial pared that down to half a dozen. Sometimes that might include an expert witness to respond to an expert that the prosecution called. It might be other eye witnesses or ear witnesses. Sometimes it can be character witnesses. And in many instances it's the accused, the defendant himself or herself.
Don West: So that next phase is when all of that happens. And then when the defense rests, that's when all of the evidence has been introduced in the case. That's the sum total of what the jury has to consider. So what happens typically between the end of the evidence, when the defense rests, and the actual closing arguments themselves, is a meeting with the judge. And that's to review the proposed jury instructions. It's often called a charge conference, and a lot of the times much of the work is done even before the trial starts. But there will be a meeting where there's an agreement on which instructions are to be read. Each side can propose individual instructions that may not be contained within what are called the standard instructions. If there are disagreements and objections, then the judge can rule. And ultimately there are a set of instructions that each side knows will be the ones read to the jury.
Shawn Vincent: Sure. And in a self-defense case in a state like Florida, the stand your ground language, all the language from the self-defense statute becomes very important. And we've seen some cases that were appealed because this jury charge wasn't given properly.
Don West: It's critically important in a self-defense case that the jury knows whose job it is to prove the case. You would think that in a self-defense case you have to prove self-defense. And in a very limited degree it's correct in that during the course of the evidence, it could be during the prosecution case or it could be in the defense case, there has to be enough evidence in the record to establish a possible claim of self-defense. And when that happens, the burden shifts right back to the prosecution to prove that it was not self-defense.
Shawn Vincent: That absolutely could not have happened.
Don West: Yeah. So it's critically important for the jury to know, when they're making their decision about the guilt or innocence of the accused, that they have to look at whether the prosecution has convinced them beyond a reasonable doubt that the accused did not act in self-defense. And any jury instruction that might shift the burden to the defense or confuse the roles that each side play in this could very well be enough to make the trial unfair. And as a result, if the person is convicted, it's not uncommon for the appellate court to reverse the trial and provide a new trial, claiming only that the instructions were inadequate or misleading or in some way shifted the burden. We've seen that ourselves in some of the cases we've talked about.
Shawn Vincent: Sure. Yeah we talked about that in the Gyrell Lee case.
Don West: Exactly. So back to the point. Once the jury instructions have been settled on, in some cases the judge now reads the instructions to the jury prior to the arguments themselves. That might be a better practice, I don't know. It gives the jurors the framework from which to hear the arguments. Traditionally most of my experience though the arguments take place after some very preliminary instructions prior to closing. And then at the end of the instructions the jury is charged they call it, they charge the jury by reading the instructions.
Don West: In closing argument, it is called argument for a reason, as opposed to opening statement, which is a statement of the case, and not an argument. In the closing argument the lawyers are allowed to argue their case and implore any reasonable inference to be drawn from the evidence to the jury. So they can argue how certain evidence should be viewed by the jury, the meaning of it, how they should put it in context.
Shawn Vincent: So we talked earlier about how the judge tells the jury how much credibility to give to each witness and what to believe. And this is a chance for the lawyers on each side to say, "Hey, here's the evidence I think is important. Here's why it's credible and why I think you should believe it and give it weight."
Don West: Yes. And of course an effective argument ties some of the evidence into some aspect of the jury instructions. So if the jury is told this is the way you should view this and the lawyer points out that evidence, and it's consistent, then obviously that's more persuasive than if it's just a naked, standalone argument that's not connected directly to one of the legal instructions they're going to get.
Don West: So the prosecution's argument typically has to be comprehensive, because they have to convince the jury that they did prove each of the elements of the crime beyond a reasonable doubt. The defense argument typically can be much more focused. It could be focused on one aspect of one element. Because if the prosecutor hasn't proven the case, as to each element, beyond a reasonable doubt, then the jury's only lawful verdict is not guilty. So never does the jury decide the person is innocent, they might believe that, but that's not part of the verdict. If they aren't satisfied that all of the elements are proven beyond a reasonable doubt, then they check not guilty, even if they suspect the person might be guilty or they're even pretty sure of it, but not convinced.
Shawn Vincent: He just didn't prove it beyond a reasonable doubt.
Don West: So here's an interesting dynamic of that. It kind of puts it on its head, especially if you look at a self-defense case from the perspective of say one of CCW Safe's partners, Andrew Branca, who has written extensively about the law of self-defense. He blogs and has an excellent video course, a live stream course, not about tactics and operation of a firearm, not that kind of stuff, but the law of self-defense, the parameters, the legal boundaries. And he breaks down self-defense into five elements.
Don West: And what he points out is if your claim of self-defense fails on any one of those elements, then your entire claim of self-defense fails, which means that a guilty verdict would be proper. So the prosecution's job in a self-defense case is not to disprove self-defense across the board, but it frankly is ... To disprove rather, to disprove only one aspect of the self-defense case, sufficiently that the jury is satisfied beyond a reasonable doubt that it did not occur ... that it was not a self-defense shooting because of one aspect of it that fails.
Shawn Vincent: It wasn't imminent enough or he wasn't reasonable enough or he had malice.
Don West: Yes. Or for example, that the person who was the attacker did not have the ability to inflict serious bodily harm or death, or didn't intend to. So, that's one of those disproportional things when you shoot an unarmed person the jury is going to focus on. Was this guy a real threat? Even if he intended to hit him, even if he had the ability and the opportunity to do all of those things, was it really a life threatening attack? In other words, was the use of deadly force disproportionate?
Shawn Vincent: I'm thinking about, if it's not a self-defense claim, if it's a robbery, right. If it's a robbery than you might argue that this is just the wrong guy and then there's just one thing you have to win on, was it him or not, right. But if you're a defendant in a self-defense case, now you've got five fronts that all have to be satisfied. Any one of them comes down and you're going to jail. So it's kind of a precarious defense.
Don West: Yes. Not only do you have to have all of those elements, and sometimes one of those elements is avoidance. There are duty to retreat states. So even if you were attacked by someone who intended to seriously hurt you or kill you and you had the legal right to use deadly force, if you're in a duty to retreat state and you don't first take the opportunity to get away if you safely can, but resort to deadly force, then you're guilty. I'm involved in a case right now, consulting, where that was the issue. Was that it happened in a duty to retreat state, the person drew the gun in the face of an attack, and did not retreat first. And the argument is, could have, could have avoided the whole thing.
Don West: So anyway, we're at that closing argument phase of our discussion where all of that stuff comes into play. And then at the end of that either the jury will be further instructed, if they weren't completely instructed before. Or, once that's done they'll be sent off to deliberate. So that's the last part of the trial phase itself -- is the jury deliberations.
Shawn Vincent: Would you agree, Don, that for the lawyer, is perhaps the hardest part of trial. Because there is nothing more you can do, and you're not allowed to go more than 10 minutes away from the courthouse. You have to be there to be called back for any questions that the jury might have. And all you have to do is to sit, in a probably uncomfortable chair and think about whether you've done enough.
Don West: Well, yes. In my personal experience there's sort of two opposing emotions at that point. One of the emotions is a great sense of relief in that you've been living in a pressure cooker for up to a year. You have been on stage, I'm talking about me personally as a defense lawyer, not the accused who has his own set of issues to deal with because he just went through the most traumatic experience of his life without any ability to control it. He wasn't even getting to ask the questions and stuff.
Shawn Vincent: And any moment he could be given news that he's either free, or going to jail for a little bit of time, or going to jail for a very long time. And to be in that crosshairs, it's tedious.
Don West: Exactly. So from my selfish perspective as a lawyer I've been through that ordeal too. I've lived with the case the whole time. I have stressed and lost sleep about how to ask questions, what witnesses to call. More importantly probably, what not to ask, not to undo something that went well. And then at the end, once it's done, it's done. So there is a sense of relief there, but it doesn't last very long because that's when the hand wringing and more importantly I suppose, in terms of the impact, is the second guessing.
Don West: So now you're sitting there, it's all behind you and you're looking back saying to yourself, "Oh my goodness, I could've done this differently. I could have done this better."
Shawn Vincent: And then all of a sudden the court lets you know that the jury has a question about some piece of evidence. Or as in the case of the Drejka trial that we're looking at, the jury wanted to know what is reasonable doubt. Something so fundamental all of a sudden you get some insight into maybe what the jury's thinking or what they understand and what they don't understand.
Don West: And then you wonder yourself, you start second guessing and say, "How could they ask that question? What didn't I do that I could have that might've made it so clear, because it seems so obvious." Now keep in mind there's going to be at least six people, and most cases 12 people back in there deliberating. And if they are acting responsibly they're going to review those jury instructions again in detail, because they're most likely going to have a written set of them.
Don West: They probably will have the physical evidence. They may or may not have the firearm, but they would have the physical evidence to review. And in this case the video of the Drejka incident to review as many times as they wanted. And it's entirely common for questions to come up during this process. Maybe one juror is stuck on something and just can't get past it. Now juries they have to be unanimous. So everybody has to decide guilty or not guilty.
Shawn Vincent: So sometimes the jury will say, "Hey Judge, we can't decide," and the judge will declare a mistrial, or what is it -- an Allen charge where he says, "Go back and try harder."
Don West: If a jury comes out ... Well, you're right. A jury has to be unanimous. If it gets to the point that a jury has concluded that they cannot reach a unanimous decision then that would be called a hung jury. As a result of a hung jury, since they can't go forward without a unanimous verdict the judge would grant a mistrial, which basically means everything they've done is over. The jury is dismissed and the prosecution can decide whether to try the case all over again with a different jury, and call the same witnesses and such.
Shawn Vincent: Sure. We saw that in the Michael Dunn case, the loud music case. That first jury, they convicted him of some lesser charges, but they actually told the judge we can't make up our minds unanimously on the murder charge.
Don West: Mm-hmm. And that's true, they can take a split verdict, a mixed verdict of guilty, not guilty, where they are unanimous on some counts, and then miss try some of the others.
Shawn Vincent: Then we had the Gyrell case, the Gyrell Lee case the jury late at night went to the judge and said, "We can't decide," and the judge said, "No. Go back and try harder." And then they came out an hour and a half later with a guilty conviction.
Don West: That's what you're alluding to when you use the term Allen charge. An Allen charge is based upon the name of a court case. And that's considered somewhat drastic. It's not uncommon, but because of the power of influence that a judge has there are legitimate questions about whether it unduly influences a jury to go back and reach a decision when they really shouldn't. But the Allen charge, as you said, is when a jury has announced that it isn't unanimous, that they're hung. And the judge reads the jury an instruction, implores them, makes them concerned about their civic duty. I think probably even includes a comment that if they can't reach a verdict then the case will be mistried, variations of that.
Shawn Vincent: Really tries to, "Figure it out if you can." But what I'd love to talk about really quickly here though is that there's so many factors that go into what motivates a jury to keep trying harder and how hard they're going to try to come up with a verdict. You get a case that goes to verdict on a Friday afternoon, everybody wants to go home that weekend, the judge wants this trial over, and there's pressure to get a verdict tonight. Whereas a trial that goes to verdict on a Wednesday morning, right, that means that jury has business hours and there's not as much pressure.
Shawn Vincent: When we talk about the members, all the little nuances that can effect whether they were considered justified or not. Imagine just the time of day or week that a case follows up, could make an impact on the verdict I think.
Don West: Imagine if you are the lone juror who disagrees with the majority, and you want to hang in there because you firmly believe that the case has been proven or you believe that the case hasn't been proven. And everybody's ganging up on you and you dig in and say, "No. It would be wrong for me to vote otherwise." And then all of a sudden it gets to be late at night and-
Shawn Vincent: You're on the eve of a holiday weekend or something.
Don West: And then you're worried about being blamed for the mistrial that follows. I tell you, Shawn, what I think happens more often than that scenario where somebody really digs in and mistries it, or sometimes just caves in. Now we've both seen jurors come back and render verdicts where one or more jurors were crying, so it was a huge emotional experience for them. But what I'm referring to now is I think what happens pretty often in a case that's perhaps even high publicity, controversial, even a close case sometimes where there's plenty of evidence, but as one of the jury instructions often says before you can convict somebody you have to have this abiding conviction of guilt that doesn't waver or vacillate. So I think there's cases where people are pretty well convinced the evidence is solid, but there's just a little bit of reservation, just wavering and vacillating.
Don West: What I'm getting to is I think what happens are what I call compromised verdicts. And that might be where some of the jurors are adamant about the main charge. Some other jurors may be almost as adamant, maybe not quite as adamant about not guilty, and there's some middle ground, a lesser charge where they'll say, "Well we don't want to miss try this case, we think that he's probably guilty of something," so they'll reach a unanimous decision on a lesser charge.
Don West: Of course rarely does the jury actually know what the range of sentences are. They wouldn't know typically if there's a mandatory minimum sentence. So they would be placing their faith in the judge to impose the right sentence in a very difficult case. And we can have this conversation another day, a lot of times the judge's hands are tied. They have absolutely no choice but to impose a mandatory minimum sentence that the legislature creates in the law.
Don West: Every once in a while the jury itself imposes the sentence. That's what Texas does. So interesting, fascinating, complicated process.
Shawn Vincent: So then it's late at night usually, in my experience any way.
Don West: I've had juries deliberate for only a few minutes. I had one jury that came back in four minutes.
Shawn Vincent: And you're like: this is either really good news or really bad news.
Don West: And I had another jury that came back in about seven. And frankly, one was guilty one was not guilty in that amount of time. And then on the other extreme I've had a jury that has deliberated for a week that came back six days in deliberation.
Shawn Vincent: Holy cow.
Don West: Yeah. And you just really can't predict, although I think typically in state court as, opposed to federal court, the trials themselves are shorter. And I think the deliberations are shorter. A few hours.
Shawn Vincent: Yeah, about 4-6 hours.
Don West: A few hours is common. So anywhere from two hours or more, I think, would suggest the jury was wrestling with it, they really gave it serious thought and went through all of the evidence. That takes time, just to go through it.
Shawn Vincent: So this whole exercise in exploring the phases of trial ... We talked loosely here about the Drejka trial as the example for it, is just what goes into ... You're going to make a split second decision in self-defense. And you're either justified or not, and it's going to take perhaps a year, perhaps longer. It's going to take multiple pre-trial hearings, and then this whole trial process we discussed to get to a handful of people who are going to, over the course of a few to several hours, make the ultimate determination of whether or not your use of deadly force was justified.
Don West: And just like you pointed out earlier, in some cases the goal of the trial is to get a conviction to a lesser charge than what's been filed. And that's not uncommon, a claim that it wasn't a robbery it was a theft. Or it wasn't a burglary it was a trespass. But in a self-defense case it's typically all or nothing. The claim of self-defense, the law of self-defense applies to the main charge and all lesser charges. So in my experience, more than any other kind of criminal case, is the person sitting in that defendant's chair facing what may very well be life in prison versus not guilty across the board.
Shawn Vincent: It's an all-in poker hand.
Don West: It is. It's all-in. All-in.
Shawn Vincent: All right Don. Well I think that's a great cross section of what the legal defense looks like for someone whose charged with a homicide in a self-defense claim.
Don West: Well good. I enjoyed it. I love this stuff, it's been my entire professional life and it gets a little nerdy from time to time, but the idea of being able to dissect this process and help show what the framework is I think is really valuable. We've talked about that next fight. You know the first fight being the one you're in to save your life in the face of a life-threatening attack. But the second fight, the one when you're navigating the legal system-
Shawn Vincent: The nerdy fight, for soft-handed people who don't have calluses.
Don West: Well you know nobody likes criminal defense lawyers until they need one.
Shawn Vincent: Until they need one, yeah.
Don West: And when you need one you really, really do.
Shawn Vincent: All right guys. That's it. You made it through all the phases of the trial. I hope you enjoyed it. I hope you learned something. I hope you never have to experience it firsthand. Next week we're going to dive into the lessons learned for concealed carriers from the Drejka trial. But until then, stay safe out there.
Don West and Shawn Vincent explore several cases where a firearm was used to threaten force, but no shots were fired. Some resulted in prosecutions, and some did not. Each helps concealed carriers understand the legal risk that comes with unholstering your weapon, even if you don’t fire it.
TRANSCRIPT:
The Legal Risk of Drawing Your Firearm
Don West: Well, I am ready to talk. I am re-caffeinated.
Shawn Vincent: Re-caffeinated.
Don West: I've never heard that before. I don't think I could have possibly made it up, but caffeinated and then of course decaf and all of that. But I am now re-caffeinated. I was heavily caffeinated earlier today, but I was losing my energy, and now I am re-caffeinated so I'm raring to go.
Shawn Vincent: I had to stop with the caffeine. My heart rate gets a little high sometimes, so my doctor encouraged me to cut out caffeine altogether. So I am decaffeinated.
Don West: Caffeine doesn't affect me dramatically. I know it does some, and I can really overdo it. But mostly, I like the taste of coffee. So that's my first choice, and the caffeine doesn't bother me. And I have this sort of slow, methodical approach. Actually, my ex-wife used to say that I'm so slow I have to speed up to stop. A little caffeine doesn't hurt me a bit.
Shawn Vincent: I was explaining you to somebody recently Don, about how that slowness that your ex-wife talks about, I call thoughtfulness. Be very contemplative, right? I have this picture in my head, I'll say something to you that maybe is an interesting idea, and you'll stop and you'll stare for a minute. You might rub your head for a second, and then you'll start nodding your head and you'll come around to it. The best is when it's a joke, because you'll take it and you'll hold it in for a second, and then you'll get a big smile and then you'll laugh. It was a good joke. But it's a good two or three second delay.
Don West: Unfortunately that's not something that I do on purpose and it's something that can be a little off-putting.
Shawn Vincent: I've seen judges be off-put by that before.
Don West: As a matter of fact, a couple come to mind, one in particular but no offense was intended. I'm sorry. I just need a little time to process and I want to maybe savor the moment for a second. I'm not afraid of gaps, just dead air, I guess we should call it, in radio biz. And this is who I am and how I am, and I do have to compensate for that every once in a while.
Shawn Vincent: I, for one, find it very endearing.
Don West: It's kind, thanks. My ex-wife wasn't always so kind. Regardless, we've all moved on.
Shawn Vincent: And here we are.
Don West: So how are you today? What are we going to talk about?
Shawn Vincent: We're going to talk about -- we're going to talk about self-defense. This might be a surprise to anyone who listens to the podcast. I pulled out ... We talked about a pretty interesting case out of Mississippi not long ago, where the lady who was the attendant at the laundromat.
Don West: Yes.
Shawn Vincent: Yeah. One of the patrons got a little crazy about refund policy on the machines and attacked her. They went down to the ground, there were some scratches and some light bruising. The attendant got away, went outside, called the cops, got her gun, had it in, like, a low ready position. Then this crazy angry patron came back out to re-engage her. The attendant lifts the gun up, points it at her, and that was enough. But angry patron backed off. She got a car she left before the police arrived. And I thought it was interesting. It was one of the ... I thought it was interesting. It was one of the few cases that we've talked about, where a gun was used but not fired in a self-defense situation. And we got into a discussion about the differences between a defensive display and brandishing. And I know we've talked to Mike and Stan, founders of CCW Safe before, and they talk about that and you take some of these phone calls, right Don? Where I think brandishing is one of the biggest issues that our members might find themselves wrapped up in. Does that that jive with your experience?
Don West: That's right. Probably if you just look at gross numbers, we probably get more calls that flow out of a brandishing type scenario than any other type. It can take many, many forms. But to be clear, brandishing has a pretty specific legal definition in most jurisdictions. There's crimes that are actually called brandishing. It's often more loosely talked about as sort of recklessly displaying a gun, maybe waving it around in a threatening way. But when we talk about brandishing, we're talking about an act of an aggressive act that is ... Well, it's a crime in and of itself. If you're convicted of a crime like brandishing, it can have very serious consequences with it. Defensive is not really a legal term. That's a term that's coined.
Don West: And I don't know where I heard it the first time. I think I do, actually. I think it was Massad Ayoob, who will be a name known to do many of the listeners, I think. A very well-respected experienced firearm instructor. Has literally written the book, several books on things. He has an instructor program. He teaches classes -- group 20, 40 and 80, I think. And they represent the number of hours that are involved in his programs. A combination of self-defense techniques and law-based instruction and live fire shooting. In any event, he's a fairly prolific writer and speaker, and I remember him being interviewed and was being talked to about this notion of brandishing. And he characterized the other side of that as defensive display. But I don't think it has a specific legal definition. It's not really something you would find in a statute somewhere, I wouldn't think.
Shawn Vincent: Yeah. But for the sake of our conversation, if you are in a situation that could be a self-defense situation, and you pull out your weapon and the threat of the use of force allows you to get away without having to use the deadly use of force, we're going to call that a defensive display as opposed . . .
Don West: Yes. Basically, you're really talking about an escalating self-defense type scenario and ongoing escalating threat, and that the display of the firearm, in other words, showing that you have a gun to the other person who's being aggressive, is enough for them to back off.
Shawn Vincent: That's right.
Don West: To discontinue their aggression. Yes.
Shawn Vincent: That's right.
Don West: I think that's a fair thing to discuss, and a good definition of that.
Shawn Vincent: Well, we've also seen cases where maybe that was the intent, with the person who showed the gun, maybe they thought they were doing a defensive display. Under the circumstances, law enforcement took that to be a brandishing scenario. So let's get into ... I found this case from Sacramento, California, a guy named Brandon Jackson. This is your textbook brandishing situation. He gets in a road-rage argument with this woman who's driving another car. They pull up to a red light. Jackson is annoyed and upset and angry, and he pulls out a gun and then he points it at the other driver. The other driver freaks out. She speeds through the red light, drives away. Jackson ends up going into a different direction. The confrontation is over, but she obviously calls in what happened, describes the car. Moments later, Jackson's pulled over, they find the gun. He didn't have a permit for it. And then they charged him with a weapons violation and then producing criminal threats, were the charges I read in the paper. So this is a classic brandishing.
Don West: Yeah. In some places they call that terroristic acts even. It's the idea of, by displaying the weapon in such a reckless threatening way, that you're terrorizing the person. I don't know if he was charged with that, but I've seen that charge in a couple of places actually.
Shawn Vincent: Sure. And I've looked these up as a whole, simple assault is one of the charges that I've seen thrown in when there's these brandishing type cases. So it seems like there'd be a whole recipe book full of different things you can be charged with when you display a gun like that, depending on the circumstances.
Don West: The names are a little different depending on the jurisdiction. Brandishing is probably the one that's best known, depending on how the gun is displayed, and how threatening it is being used. For example, in Florida, if you point a gun at somebody in a threatening way, without firing it, and even without any intent to harm or kill, but certainly demonstrating the present ability to do that, that kind of threat is characterized as an aggravated assault. The firearm makes it aggravated. The assault is the threat by word or act. You combine those two and you can go to prison for several years, and many people do. And in fact, there is a mandatory minimum in Florida for that very act of threatening somebody with a handgun.
Shawn Vincent: Is that 10 years in Florida? Is that a 10, 20-
Don West: Last time I looked, the mandatory minimum for the crime was three years. The maximum was five, and that's without it being fired. Or any injuries or anything like that. So aggravated assault is typically a five year maximum felony with a three year mandatory minimum.
Shawn Vincent: But you'd agree that this road rage incident, that's sort of a classic, even though he didn't get charged maybe officially with brandishing, that's a classic brandishing incident?
Don West: Yeah. Yeah. Brandishing, aggravated assault. Any number of ways doing something like that could be characterized as a criminal act, and a serious one. There does not appear to be, in this case, any legal justification whatsoever, other than he's mad at this woman for something real or perceived-
Shawn Vincent: And why did he want to be threatening and scare her?
Don West: Yeah, he clearly wasn't responding to a threat of hers. There's no suggestion that she tried to run him over. No suggestion that she had a weapon, that she was in some way displaying. I guess whatever happened on the street just made him so mad he thought somehow, his way of addressing the problem would be to point a gun. And what an idiot. Of course, we say that often in these cases because it sets the stage for tragedy. And we've had other cases where something that starts like this results in one or both people getting shot and sometimes killed.
Shawn Vincent: Right. So we recently talked about a case where there's a guy in his work truck on the phone with a friend. He's a veteran Marine by the way. And he cut off this other guy in traffic, and he knew it, and he knew it was his fault. So they pull up to a red light and he rolls down his window if it wasn't already rolled down, and he leans out to try to say, "Hey, my bad." His friend on the phone heard him say, "My bad." But that wasn't appropriate or good enough for the guy who got cut off. He gets out of his car, he has a gun. So here's this guy getting out of his car, walking up to the vehicle of a guy who he doesn't realize as a Marine veteran who's also armed. He pulls his gun, they have a shootout right there in the middle of the street. Both of them ended up dying.
Don West: Yeah. Tragic, tragic consequences. And, well let's talk about that for just a second to compare what that case was, and this one that we're talking about, just now, in terms of the reaction of the driver. Not the aggressor, the driver in the case. I guess that was down in Florida, Davie, Florida.
Shawn Vincent: That's right. It sure was.
Don West: He decided to try to mitigate whatever it was that he had done wrong by apologizing. But in order to do that, he stayed where he was. He rolled the window down and engaged. We don't know what else he may have said, but you talked about it. Then the act of rolling the window down may very well have been perceived by the other guy who was hot enough to get out of his car with a gun, to be an act of aggression, or an escalation of some sort.
Shawn Vincent: That's right. We talked about how in road rage incidents, almost nothing you can do can de-escalate it other than just getting out of there.
Don West: So even if you assume he was de-escalating by rolling the window down, it may very well have been perceived as a willingness to engage, and tragic consequences. So I'd like to compliment this unnamed woman in this incident, in this I-80 case, for having the presence of mind to do nothing more complicated than just driving off. Just getting the hell out of there.
Shawn Vincent: And then ended the confrontation.
Don West: Yeah. It put her in a safe position. Not everybody can because of cars and being in front or around. But she had the presence of mind to see this guy with the gun, knowing no good's going to come out of her trying to reason with him. So she just got out of dodge and then also called it in apparently. And this guy, I guess, what he did there was he got on the interstate, because that's why they call it the I-80 case. He was eventually pulled over on the interstate driving.
Don West: Let's talk about what's going on with this guy, because as a criminal defense lawyer, I've seen it from this guy's side, meaning I've represented people who have done these kinds of things. I believe as part of my criminal defense practice, I was doing public service work by accepting court-appointed cases. Sometimes I really didn't have any choice. I needed the money early in the career, and it was a good source of income. I'd spent some time at the public defender's office later on when I was much more established and financially independent. I didn't need to take court appointed cases, because sometimes they were a huge pain in the neck with hostile clients that are ungrateful for everything that's done. It just kind of comes with the territory. But I do think that it keeps the system honest if capable, experienced lawyers participate in the public defender court-appointed system. So anyway, I did it for a long, long time.
Don West: So I've represented these guys, and as we joked in a prior segment, I see bad people at their best. So I'm seeing the best side of these guys coming in. But I can just imagine from the reports and the interviews, how volatile, and how quick the emotional triggers are. Many of them have ... I'm no psychiatrist, certainly not a neurologist, but many of these guys in my experience have a frontal lobe impairment of some kind. So whether it's an impairment caused by alcohol or drugs or physical abuse or any number of different conditions, can result in impairments in the frontal lobe, which impairs executive functioning or reasoning. And most importantly, I think impulse controls.
Shawn Vincent: Sure. In our family, we call that a screw loose.
Don West: Yeah. They just go off. And I don't know if they can control it or not. Some can better than they do, but I suspect there are many that just can't. And once they get started, it's going to have a bad outcome, and there's very little that can happen, good, when it comes to this. So let's talk about this guy. He's driving down the road. Something makes him mad. Mad enough that he displays a gun to this woman, who apparently had not threatened him in any way. So we know that's a crime. We know it's a crime that's worthy of the local deputies enlisting the help of the California Highway Patrol, chasing this guy, catching him on Interstate 80 and arresting him, finding the gun in the car, and he doesn't have a permit. I don't know if he has a criminal record that would keep him from getting a permit. There are lots of places in California where you just can't get one. I don't think Sacramento necessarily is that area.
Don West: So here's a guy who's carrying a gun illegally.
Shawn Vincent: Right.
Don West: And threatens a woman with it, and then drives down the road, what? Thinking he's not going to get caught? Or doesn't process that well enough. Doesn't even think about what happened in the sense of, "Geez, I had to at least get rid of this gun. Don't you think?"
Shawn Vincent: Sure. Well he's not considering the severity of the crime that he just committed.
Don West: Maybe that's it too. Maybe he doesn't think it's a big deal. Maybe he does it all the time. But the list of charges is pretty lengthy. So the illegal possession of the firearm is completely separate and apart from the threatening use of the firearm. Now they're all part of this continuous event. But what he did to threaten this woman, the brandishing assault type behavior, is distinctly legally separate from what happens, maybe 10 miles down the road when he gets caught with the gun. And he's not allowed to possess. So he's got those charges. He's got the assault-type brandishing charge. And if he has any kind of criminal history, he's looking at a lengthy prison sentence. Why? Well, he was committing a crime all along by having the gun, but to be so reckless and irresponsible and volatile to display it in that way, as a guy that I guess ...
Don West: Maybe the end of this long rambling story is, that's a guy whose his own worst enemy. That's a guy who's completely unpredictable. If you pull out a gun in that situation, what is it going to take for him to pull the trigger? Maybe not so much. So how do you reason, how do you conduct yourself rationally and logically when you're faced with somebody like that? And I submit you can't. You just can't. You have to save yourself, protect yourself, and depending on the dynamics of the situation, respond to it in such a way that will keep you safe.
Shawn Vincent: Yeah. And I think if we all ... You don't have to have a frontal lobe problem to have a bad temper. Right?
Don West: Yeah. I'm not offering that as any sort of informed opinion. And I'm certainly not offering it as an excuse.
Shawn Vincent: No, but-
Don West: I know from-
Shawn Vincent: Go ahead.
Don West: Well, I was just going to say, I know from my work, representing people that later after the cases, well months or years after the event has occurred and you're sitting there doing scans and neurological testing, and you're able to, with these instruments, actually identify some brain stuff that will help explain the lack of impulse control. And sometimes that's very favorable in a mitigation context, in a sentencing context, in no way makes you not guilty of the crime. It may warrant some lesser sentence if there's a significant impairment, but anyway, Shawn, I guess my point is there may be all sorts of biological and neurological and substance abuse components to this. But the bottom line, the behavior is scary and threatening and very dangerous.
Don West: To your point, you're absolutely right. I don't know why people fly off the handle. I would agree not all of them have some diagnosable identifiable brain injury. They could just be what? Assholes, maybe.
Shawn Vincent: Sure. Or just ... I have had very strong reactions in the car when my kids are in the car, especially when they were little, and somebody did something dangerous in traffic. And I've felt a sort of anger at that threat to my children's safety come over me. And I guess I'm always looking for what are the lessons for concealed carriers. Anyone who's listening to this podcast comes to this with a responsible gun ownership mentality. You're not listening to this podcast if you're not interested in being the most responsible gun owner you can. But if I'm looking for lessons in these cases for us and for our listeners, it's knowing yourself, and knowing what circumstances might cause you, because I think everyone can get irrational at some point under the wrong circumstances. You tell a story all the time about a guy on a jury who decided he was a concealed carrier, but he didn't put a gun in the car cause he gets too hot tempered. It's about knowing yourself, right? It's about knowing yourself and when's it appropriate to carry it, and when's it maybe not a good idea for you? Anyways.
Don West: No, that's well said.
Shawn Vincent: So let's look at the complete other side of this. Another case where a gun is displayed, but there's no charges for the guy who pulled it, right? We're going to go to Allentown, Pennsylvania, right? And there's this road rage incident where one guy who probably has frontal lobe issues, Don, freaks out, chases this guy for a couple of miles, apparently. It ends in, I don't know if it's a an alley or some dead end there. They're out of the car. The guy who was losing his mind has a knife, attacks the guy he had been chasing. That guy punches him in the face. They wrestled each other to the ground. And then that's when this third party comes by and he's a legal concealed carrier. He pulls out his gun and tells the guys to stop and essentially holds the attacker at gunpoint until police arrived. Somebody else calls the police.
Shawn Vincent: And so police show up and here's two guys lying on the ground. There's a knife some distance from them, and there's a guy standing, legs shoulder width apart, in a shooting stance, both hands on his gun pointing at these guys. And he was referred to in the reporting I saw as a Good Samaritan. So here's a case where-
Don West: I saw that. There was interesting choice of terms, right. I guess Good Samaritan in that he was able to put to a stop whatever was happening at that point. So there was no more violence because he was the one who was then in control.
Shawn Vincent: Sure. So he intervened into somebody else's self-defense scenario, I suppose. And he used the threat of deadly force to stop it. Whatever he did, however crazy and angry this attacker was, the sight of the gun caused him to reconsider his aggression, and he stopped. But I don't know. You tell me. We talk often about Andrew Branca's idea of legal risk when you use a gun for self defense, that if you're bring the gun out, you're opening some non 0% chance of legal consequences. Did this guy take a risk by pulling out his gun and holding these people at gunpoint until the police showed up?
Don West: He clearly took a big risk because he needed to make some decisions, and he may have had to take sides as to his interpretation of what was happening. Now it's like so many of these cases, the deciding points are often buried in the details. So we don't know exactly when he became knowledgeable of this. He probably didn't know anything about the car chase and the circumstances that brought these two guys together in this parking lot.
Shawn Vincent: So would he know even who is the first aggressor was?
Don West: He wouldn't. I wouldn't think he would know who had a weapon first, or who threatened first, or what may have led up to this, or maybe one of the guys was trying to chase down a bad guy in some sense. That's the thing. And Andrew Branca points that out, that you put yourself in the shoes of the person defending, and that your rights typically don't extend beyond what that person could have done.
Shawn Vincent: Yeah.
Don West: So you need to be right. Now, in this case, he probably saw an unarmed person being attacked by an armed person-
Shawn Vincent: Sure. The knife.
Don West: The way the circumstances are described when these two cars came to a stop, and we should talk about how on earth that happened. But in any event, these two are-
Shawn Vincent: Yeah. If someone's chasing you, why do you stop and get out to confront them?
Don West: Yeah. Why don't you, if you're going to stop your car and some guys chasing you, why don't you stop it in front of a police department and call 911 and say, "There's some idiot behind me who's been chasing me through town for 20 minutes"? But in any event, he sees, I'm assuming, two guys out of their cars, one of them with a knife who's being very aggressive to the other. And that he decides to put a stop to it. So when I looked at the video, I got the sense that maybe he wasn't actually taking a side-
Shawn Vincent: No. He seemed like holding the gun on both of them until the cops got there.
Don West: Yeah, yeah. That he was just making them stop and trying to communicate that whoever ... If they both don't stop, one of them is going to have a problem if they continue the aggression. So my guess is if the guy with the knife hadn't dropped it, or if he'd tried to stab the other guy, the guy with the gun may have very well have intervened at that point.
Shawn Vincent: Sure. And in the video you talk about, you can see a fourth party come over and pick up the knife, kind of with just his index finger and his thumb, and carries it away. Understanding that it's evidence, trying to keep his prints off at as best as he can.
Don West: Well, maybe that's one interpretation. That's why these things are so tricky, Shawn, is because I saw that video and he did exactly what you described. Kind of pinched the end of the handle of it and carried it open. He may very well have had the presence of mind to show the guy with the gun that he wasn't a risk. So he was holding the knife in such a way that he couldn't use it as a weapon, and got it away from these guys to be sure the guy with the gun knew that he wasn't going to involve himself-
Shawn Vincent: And then of course in this case, there's a fifth guy who's the one with the cell phone camera. So there's a lot of people. It's a well-documented moment, a well-witnessed moment. But you know, another consideration on this is, when the police show up on a scene, I don't ever want to be the guy standing there with a gun drawn. You know what I'm saying?
Don West: Talk about a confusing situation. How are the police supposed to figure this out? And they're rolling up and they see a guy with a gun.
Shawn Vincent: Yeah, that can be a very tense situation very quickly.
Don West: Now, let's assume he had the presence of mind that once the police presence was known, that he did the right things too. But in any event, when you see a story like this, obviously your mind races because there's so many variables. Any one thing that happened differently could have resulted in one or more people being killed. I'm wondering if the guy that was so mad, who had the knife on the ground, made some sort of aggressive movement even after he was disarmed. Would he have been shot? He can't, at that point, if he's disarmed, he's laying on the ground, wrestling around with somebody, he's not in the act of threatening somebody with great bodily harm or death. To shoot him would be very disproportional, I think, under that scenario. And then all of a sudden the good Samaritan's looking at a serious crime.
Shawn Vincent: Sure. And we had said before, that maybe not in every scenario, but in most scenarios, you'd be justified in the display, the defensive display of the weapon if you would have been legally justified to use the weapon. Right?
Don West: Yes.
Shawn Vincent: So if you were justified in shooting and killing, then you're certainly justified and defenseive display. And what we're looking at here is once this guy's disarmed, he doesn't have the knife anymore and you just have two guys in a fistfight, are you allowed to shoot somebody to break up a fist fight? Is the question. And the answer is no, in most cases, right?
Don West: I agree. Yes.
Shawn Vincent: And then if you're not justified in shooting them to break up the fight, then it becomes a lot murkier about whether you're justified in the offensive display. So there's that legal risk.
Don West: MSo you've got a situation here where if you really wanted to drill into it and even break it down frame by frame, there are moments, I think, where the Good Samaritan has some legal risk, frankly. But we're also given, assuming it's exactly as it was described, that's where the law enforcement and prosecutorial discretion come in. That's something that Andrew Branca talks about is those kinds of cases, you probably will get the benefit of the doubt from the prosecution or from law enforcement. But you don't have to. If you have legal exposure, you can be prosecuted for it. And while many prosecutions that technically could go forward don't, because of the good judgment and the good sense of law enforcement and the State Attorney or the DA, seeing that this isn't the kind of crime that should be prosecuted, nonetheless, there are many gray area cases where someone gets charged. Or there's a couple of additional facts that cast some sort of shadow on it that tips the-
Shawn Vincent: Well, here's another case where a gun comes out after a fight. We're going to go to ... This is a dance competition. It's at a high school gym. It's not hosted by the high school. It's another organization that's hosting it. But let's just say there's eight, nine, different troops of young women, girls who are in dance troupes and they're competing here. And the winners of the dance competition get announced. Some people obviously feel that they were jilted and the argument ensues. A fight breaks out. And then at one point you see cell phone picture, a woman pulls out a gun. And then we find out even later that that turns out another woman pulled out a gun in this situation. And the one they knew who it was, she got arrested and charged. This is the one where they had the simple assault charge amongst others, and then they're looking for who this other woman was who brought out a gun. So here you got a fight going on. Now the gun's introduced and there's no question that anyone here's a Good Samaritan. They're looking to criminally prosecute people.
Don West: So this is in what? A gymnasium at a school. Even though it's a private event, it's a at a school facility.
Shawn Vincent: That's right.
Don West: I got the sense there were hundreds of people there of all ages, including a lot of the kids that were participating in this competition, and their parents.
Shawn Vincent: That's right. I think about those wooden bleachers that you pullout in high school gyms, those seemed pretty filled with people.
Don West: Yeah, and I guess I shake my head in disbelief, to think that someone would ... Well, I'm going to assume that it wasn't illegal to possess the gun there. I'm probably not right if more facts were known. I'm going to assume that even though it was a school where guns would likely be prohibited otherwise, that because it was a private event. . .
Shawn Vincent: She was charged with brandishing, simple assault, and carrying a firearm on school grounds. So. . .
Don West: Well, then they've already made that decision that there was no exemption for that because it was a privately held event, rather than the school being used as a school. So the audacity to take a gun there, and then the circumstances under which it was displayed are shocking to me because, as I read the report, all of this was happening because they disagreed with the outcome of the competition.
Shawn Vincent: Right.
Don West: And if that wasn't enough, another woman has a gun and it comes out, and there's video of her holding it. That's the one the individual that hasn't been identified yet.
Shawn Vincent: That's right.
Don West: Oh, I'm just shaking my head. I can't. It's scary isn't it? If you think that people exercise that kind of judgment, that they ... We talk about being a responsible gun owner. First and foremost, if you're going to assume the incredible, awesome responsibility of carrying a firearm, that that carries with it so much more than what life demands of you otherwise. You can be a hothead, you can be a jerk, you can get in people's faces and wag your finger, and you can tell them how whatever the low-life they are, and how stupid they are, and you can pick fights if you want, as long as you don't break the law. But to introduce firearm into a children's event like that shows such irresponsibility and such bad judgment that, well, frankly, I hope all of the individuals responsible and do get prosecuted. What an inherently reckless and dangerous thing to do in a public event like that full of kids? That's shocking.
Shawn Vincent: And since that's so clear, I wanted to show that as a contrast to the 'good Samaritan' who pulled out a gun to stop a fight. And I guess the question is, are you trying to stop the fight or are you escalating the fight? And I think that's a sense here, that these women who pulled out the gun seemed to be escalating as opposed to getting a fight to breakup. And I guess a gun is probably a bad way to break up a fight anyway. Here's a. . .
Don West: It's a terrible way to win an argument, I can tell you that. And that's probably how it started. That there was an argument over who the winner should have been, and that got more and more heated. And then pretty soon somebody threatened to kick somebody else's butt, and then pretty soon it got to the point where, "Oh yeah, really?" And then a gun comes out. And then of course that's as far as you can take it without shooting somebody, right?
Shawn Vincent: That's it. It's there . .
Don West: And now they believe that they were at risk of being shot. So the response, the way I take it is that ... Then another gun comes out. And I can imagine.
Shawn Vincent: And here's where that goes, right? So we'll talk about another case that you and I have touched on before. But when we talk about brandishing, you can be arrested for it and have real jail time, right? It's a serious offense, but there's a worse consequence to it. So we're going to go to Indiana, right? You'll remember this case because we talked about it years ago. And there's a guy. He's a Indiana firefighter. He owns his home, he's working. He's got a big yard. He's got a fence between his yard and his neighbor's yard. He and his neighbor who sort of was this wacko, crazy guy ... He reminds me of ... What's Laura Dern's father, that actor?
Don West: Bruce?
Shawn Vincent: Bruce Dern, if he's one of his roles where his hair's all crazy and he's wild-eyed and crazy, this is what this guy reminds me of, right? So he's got a Bruce Dern character as his neighbor. And they'd gotten in this fight before, that involved bite marks on each other. This is the kind of animosity these guys have towards each other. So they're at it again. They're yelling at each other over the fence. There's a security camera that picks up this. So the, the Bruce Dern character, then, you can see him on his riding mower tractor go by the frame of the camera, and he pulls out a revolver that turns out to be his live-in girlfriend’s revolver. And he kind of jangles it in the air. Like, "Hey, I got a gun. How about that?"
Shawn Vincent: Well, apparently, the firefighter, he kept his gun on him while he was doing yard work. He's got a, I think, a Glock with 16 rounds in the magazine. So he pulls out and he just unloads the whole thing out of it. He shoots his neighbor four times, he falls behind the tractor and then the tractor absorbs the other 12 bullets. Miraculously, the guy didn't die, actually stood up, flipped him off and walked back into his living room where he collapsed. And I think he ended up surviving that episode. And the prosecutor looked at this case and he said that it was justifiable self-defense, although he didn't want to be seen as validating either the men's behavior.
Shawn Vincent: But I guess I say this in all to say that some brandishing best case scenario, you get arrested for it. Worst case scenario, you get shot and killed for it. And we've seen cases where you introduce a gun, you've just given somebody else a reasonable fear of imminent death or great bodily harm. Would you agree with that?
Don West: You put a little history behind it as these guys did, even if the history becomes an exchange of angry words and gestures and those sorts of things during the onslaught of a road rage incident of some sort, and pretty soon the reason you're not dead is because you were lucky that the wounds weren't fatal, and that could go either way. As soon as people start shooting at each other with a gun, the fact that no one actually dies is just luck, as opposed to any plan. We know, we've seen how many cases where one shot results in death, and four or five doesn't. But that's not to say that anything good came out of the one where he didn't die other than the fact that he literally didn't die.
Shawn Vincent: You just don't know.
Don West: And, yeah, in many instances, everyone's surprised. That's a case where it's what? One upmanship. We see that in varying degrees too, especially with these ongoing disputes. The violence starts with arguments over the fence and then escalates, sometimes, as in this case, with some prior physical contact. Wasn't there even a knife introduced at one point?
Shawn Vincent: Yeah, I think that's right.
Don West: And like you said, all that stuff. So I suppose when the prosecutor looks at this, if they looked at it fairly objectively, they would say, "Well, the guy on the lawnmower is the one who introduced the firearm into it. It had been an escalating ongoing sequence. And as soon as he showed he had the gun, it's fair to believe that he intended to use it. Why wouldn't he under those circumstances?" So the fear was reasonable. If the fear of great bodily harm or death was viewed as reasonable under the circumstances, then the use of deadly force in response becomes reasonable. And so long as more shots aren't fired than necessary, and in this instance maybe there were, but they weren't necessarily ones that hit their mark. . .
Shawn Vincent: That's just it. I think the first four shots may have been justified. The last 12 shots, if he had actually killed his neighbor with those shots, lying on the ground, we would have a whole different story here, wouldn't we?
Don West: Oh, sure. Yes. Without question. Crazy stuff, huh?
Shawn Vincent: It's crazy stuff. And we look at this too ... Yeah. I'm trying to find, what's our lesson, because I feel we've said it before in this segment that our listeners are responsible gun owners. They've come to CCW Safe because they have ... You don't buy insurance, right? If you're irresponsible. The thing you need to do to protect yourself is a responsible thing to do. And we're looking at some really irresponsible uses of firearms in this case. And I don't think that our members are going to be in these situations, but there's something to be learned from them, which is, I think, how quickly ... Maybe the lesson is just how quickly things can escalate, and the temptation of when you're armed. I think the lesson, especially when it comes to the brandishing, is that if you're not justified in using deadly force, you're not justified in showing the gun.
Don West: And that follows immediately by, once you show a gun, there is a very predictable response. Either it ends it, and the other person goes away, or they escalate it because . . .
Shawn Vincent: And now you're in a gunfight.
Don West: And now it's on.
Shawn Vincent: And here's the other lesson that I think I'd like to draw from this, and we'll go to the good Samaritan case on this, and the legal risks you take when you draw your weapon. And that's this idea of all these variables you don't know about, right? We talked time and time again about whether a self-defense use of force incident is considered justified or not really rests on a lot of these nuances. Right? And when we were talking, we talked about a case where a guy shot some intruders who were trying to get into his house through his front door, which we generally not recommend shooting people you can't see who don't pose an imminent threat. But in that case, he knew who they were. He knew that they weren't there for good. There were two of them that are going to try to break into his house, and he was justified.
Shawn Vincent: But you said something interesting then, which is if you're going to use force to prevent a forcible felony, right? Use your firearm prevent a forcible felony, then you have to be right. Right. And you have to be certain because if you're wrong about any of the details, then you could be in real legal jeopardy there. And if this good Samaritan were wrong about the circumstances, he could have found himself in legal jeopardy there.
Don West: I think that's especially true when you are employing the defense of others, when you sort of step into the shoes of the other person. And there are certain scenarios that are clear. I remember a case in Florida where a good Samaritan came upon a deputy sheriff being brutally beaten by someone, another motorist, I guess. And he had a gun. He got out of his car, had the gun, and the officer said to him, "Shoot him. Shoot him." And of course there was no mistake at that point who the victim was, who the attacker was, and that in many regards, all of that ambiguity of what was going on was resolved. And I think he shot the guy. I believe that he did and certainly was not being prosecuted.
Don West: So that kind of scenario made it especially clear, unless you have something that you've watched unfold from the beginning, there's certainly going to be subject to a misinterpreting what's going on. And that just makes you at greater risk. At the same time, this guy was brave enough to stop what he believed to be a very dangerous situation for somebody, because the other guy had a knife and was swinging at him. So to the extent that he was able to stop somebody from getting hurt, he was gutsy enough to do it. Fortunately, it turned out well for everybody.
Shawn Vincent: And he had the judgment to not fire. And it would've been a different scenario if he had actually fired the weapon and hurt or killed somebody with it.
Don West: Yeah. And thankfully he didn't. And thankfully he didn't need to. That that display was enough to make them stop. Had he displayed the gun, and the attack continued, then he would have had another set of considerations, and ultimately another decision to make, and thankfully that didn't happen.
Shawn Vincent: Well, here's something that I can count on, is that in the next couple of weeks, there's going to be at least five more self-defense stories that pop up in the news. And we're always going to have something to talk about. But I think I've been really deeply influenced by my conversations with Bob O'Connor, the retired veteran career homicide detective that we both know. And he talks about judgment and mindset. And when we go through even some of these ridiculous cases like these women pulling out the gun at the school dance competition, I think just going through them and thinking about them in a critical way is a way to build that mindset, right? Because we don't know as concealed carriers, what circumstance we're going to find ourselves in when we have to make a life and death situation, if that ever happens. We're not going to know all these nuances, but I think the only way to be prepared for it is to have thought critically about the types of situations that can and do occur, and have that mindset going into it.
Don West: I think that's very, very well said. A terrific observation, and I encourage our listeners to check out some of the work that Bob ... Some of the written work that Bob has done, submitted to CCW Safe. It's been posted, and the podcast that you did with him. I don't think it's been . . .
Shawn Vincent: Yeah, by the time this one's released, that one will be up, so people can go back and hear that. We had a great conversation, not just about mindset, but also about you and his involvement in the George Zimmerman case.
Don West: Yeah. Bob was the captain at the Sanford Police Department when the incident took place. Shawn, you said something about the mindset, but more importantly to me what caught my attention is, I think you were saying we really don't know how we might react in those situations, because we've either never been in them or never been in them with a gun. And we've never really been tried and tested, in terms of the triggers that we all have.
Shawn Vincent: Sure. Not that trigger on the gun, but the triggers for our temper, or that spark our emotions.
Don West: Yeah. That set us off, that make us crazy in any given situation. So thinking about that stuff, visualizing that stuff, hearing the bad things and good things that have come out of some of these stories, and I think helps us better understand how we might react and force us to think about it. Let me just add that depending on where you are, and where you get your concealed carry permit, there may be as little as only a couple of hours of training, maybe no live firing. And that, I think CCW Safe has in mind that no matter how much training you had to get the concealed carry permit, it's not enough. It's not enough to prepare yourself for these kinds of things.
Don West: So the training is an ongoing process. The act of training with the operation of the firearm and the act of training with the strategies and tactics involved, and then of course, as we've talked about before, understanding the legal parameters of these. And frankly, we do some of this stuff because we want people to learn from other people's mistakes. And I think that's possible. I know I have already, just by talking to you about these things, I've looked at scenarios differently than I might have otherwise. And really focused on some of the legal boundaries, as Andrew Branca talks about it, rather than the emotional aspect of it.
Shawn Vincent: Yeah. Well, I've ... I think we do this right, then people go into scary situations with a better mindset, more prepared, and we might just save a life from being needlessly taken, and save a solid citizen, and a responsible gun owner from facing maybe an unjust and life changing prosecution. That's the mission.
Don West: Agreed.
Shawn Vincent: Well Don, I really enjoyed it and we'll talk again real soon.
Don West: That's great. Thanks Shawn. I enjoyed it as well, and looking forward to our next get together. Take care.
In this weeks podcast Steve Moses joins Mike and Stan to take a deeper look into his recent article about road rage and how it can impact concealed carriers.
Don West and Shawn Vincent explore a tragic road-rage case that resulted in the unnecessary deaths of both the defender and the aggressor. The case illustrates how, for concealed carriers, road-rage is a no-win scenario.
TRANSCRIPT:
Shawn Vincent: Hey there, Don. How's it going?
Don West: Great, Shawn. Good to see you again.
Shawn Vincent: It's good to see you. So often, we record these things when we're in our own nomadic offices. What do we call this thing that we're doing, where we can work out of our home sometimes, or we work out of a hotel room, we work out our rental car?
Don West: Isn't technology remarkable in that sense for us who need to travel as part of the way we make a living, have the luxury of traveling as well so that when we're not traveling for work, but otherwise enjoying life, we can still do the things that are important from a professional standpoint, we can still have conversations with each other and others. We're no longer tethered to the desk.
Shawn Vincent: Tethered to the desk, which is case in point. I don't have an office that I go to every day. I work from my home. I work from a hotel. Yeah. I work where I need to work, sometimes from the back porch of my house, and the weather's good enough. But today, we're in a library in Winter Park, Florida. I have to say I'm surprised at how noisy librarians are.
Don West: We actually had to move the room.
Shawn Vincent: We moved the room here next to the employee break lounge. The librarians wouldn't shut up. They're too noisy. But here we are.
Don West: That's the beauty of it. Here we are in the same part of the country for the first time in quite a while.
Shawn Vincent: It's been months anyway. Yeah.
Don West: We can find a local spot. We have portable equipment, and we have laptops and cell phones and lovelier microphones. Now, we have a broadcast studio.
Shawn Vincent: That's right. Even if it's a slightly echoey room. But yeah. Here's what I want to talk about with you today. You've mentioned last time we spoke that you tried your first case that involved a violent crime before a jury about 30 years ago.
Don West: Yeah. I've been thinking now probably early '80s. So we're talking probably '82, '83, in that range. I was working at the public defender's office in Seminole County, Florida, which turned out to be the same venue more than 30 years later for the George Zimmerman, Trayvon Martin trial, which is kind of the backyard for Mark O'Mara and me for such a long, long time. My first self-defense case, lethal self-defense case to a jury was a local Seminole County prosecuted case. It was domestic in nature. My client was a woman who stabbed and killed her husband in self-defense, and it goes back that long ago. There've been a number of them since. They're all unique, even though there are common threads of course and common legal issues.
Don West: Interestingly enough, in that case, there was a reversal on appeal because she was convicted of a lesser offense because of jury instructions. The court denied her the opportunity of the castle doctrine. Then on appeal, the appellate court said, no, she was in a home that she lived in. Even though they were estranged, and she was just there temporarily, it was still her house. So she had no duty to retreat, and then reversed, got a new trial, and the case resolved.
Shawn Vincent: That's really interesting. So castle doctrine doesn't have to refer to only your primary residence if it's a home where you have a right to be.
Don West: They were equal occupants.
Shawn Vincent: Equal occupants. Yeah.
Don West: That's right.
Shawn Vincent: That's interesting. You're just as protected by castle doctrine at your beach house if you're lucky enough to have one as you are in your primary residence then.
Don West: Yeah. It was interesting because one of the factual issues that led to that was that she had an opportunity to leave without re-engaging him and chose not to. The confrontation turned lethal, and she had been denied the defense basically of the castle doctrine. The jury was instructed she had a duty to retreat under the circumstances. Even though they didn't buy the prosecution argument that it was murder, she was still convicted of a lesser offense and sentenced to a prison sentence. So the case was appealed. We won on appeal, and the whole thing worked out in her favor at that point. But it was a good example of how one... We talk about so often how one-
Shawn Vincent: About the nuances.
Don West: ... little thing makes such a huge difference. Frankly, let's fast forward, how many years to the Marissa Alexander Case in Jacksonville?
Shawn Vincent: You were talking about that. It made me think of Marissa Alexander situation.
Don West: I hope we do a deep dive in that case at some point. But long story short is she was prosecuted for essentially firing a warning shot at an estranged... I don't know if they were still married, but it was an ex-relationship of sorts. She felt threatened and fired a gun, had lost, I believe, the self-defense immunity hearing, went to trial, was convicted and initially sentenced to I think 20 years in prison.
Shawn Vincent: 20 years. Three 20-year sentences to be served consecutively because there was the husband or the estranged father, some children, and two children were present. So she fires one shot, which she called a warning shot that struck nobody, went into the wall and then to the ceiling and the room next to her. Angela Corey and her crew, who we've had experience with, decided that they'd charged her with attempted murder times three.
Don West: Yeah. Not to get too far off-track, but in that case, she was convicted and sentenced to a lengthy prison term and won a reversal. I think out of all of that stuff that was so controversial and was so divisive, even within the legal community, she winds up I think getting a new trial because of a jury instruction issue.
Don West: So she comes back. She gets a redo and gets some new lawyers and some maybe new prosecutors. But in any event, there's a resolution of the case that's favorable. But she spent at least some time in prison. I believe is a convicted felon even as a result of what turned out to be negotiated outside.
Shawn Vincent: So I promise you we are going to do a deep dive into that case relatively soon. I also have some bad news for you, Don. 1982, '83 was way more than 30 years ago.
Don West: Oh, Shawn. Say it isn't so.
Shawn Vincent: So they get closer and then-
Don West: Oh my goodness. I guess you're right.
Shawn Vincent: 37, some years ago. You and I were talking one time, and he said, "A few years ago something happened." I said, "Is that an actual a few years ago, Don, or is that like the old man, 15 years ago actually, but it feels like just a few years ago?"
Don West: That does feel just like a few years ago to me. I say 30 thinking that-
Shawn Vincent: That's long enough. How could anything have happened 30 years ago that I can remember, right? I'm middle-aged now, which I'm starting to get into my head that... When I climb stairs, it becomes apparent to me that I'm middle-aged now. Or when I tell the same stories over and over again, which I'm prone to do. My kids know, I apologize. I'd probably told you this story before, and like, "Yeah, Daddy. You have a lot of stories that you tell over and over again. Mommy has one story that she tells over and over again." That's the difference that my kids have determined.
Shawn Vincent: So I bring that up only because I think you've told this story before, and some avid listeners may have heard it. But because we're getting older and it's our prerogative, we're going to tell this story again. Because today we'll be talking about a road rage case. You told me about a self-defense case, a road rage case where you're quizzing potential jurors during jury selection and got a surprising answer.
Don West: That's exactly right. I remember it clearly as well as I can remember anything, clearly.
Shawn Vincent: Was it 30 years ago?
Don West: At my advanced age. Yeah. It wasn't 30 because it was clearly... I think it was after the first one I was telling you. [inaudible 00:09:30] has long since gone beyond the public defender's office and full-time practice criminal defense laws, state and federal in private practice and the Orlando area and places beyond. But in any event, I had this jury trial, was a case that could not be resolved. My client was charged with second-degree murder, with the use of a firearm, which would have likely resulted in either a life sentence or such a long sentence that it would have effectively been the rest of his life.
Don West: We picked a jury. We're picking a jury. The overview of the case, and I don't name names in these cases because these are people that are with us right now, somewhere maybe even in this community who as a result of this event were prosecuted, were facing lengthy prison sentence. By good luck, and I'd like to think some good lawyering and some favorable facts are no longer facing that, that they were acquitted. They got to live the rest of their life, and I see no reason to bring them back into it now.
Don West: I can certainly swear to you that none of this is made up. It's part of the life experience of individuals that we know personally because we've been involved in their lives and the life of criminal defense lawyers and litigation consultants. But we were picking a jury, and obviously, one of the issues we want to know and explore with jurors is their attitude about firearms, the use of firearms, self-defense, even generally attitude about the second amendment and their views. Firearms, the use of firearms, licensed, unlicensed, possession of firearms has always been controversial.
Don West: Fortunately, in Florida the lawyers have wide berth in personally questioning the jurors during the voir dire, some people pronounce it, the jury selection process. I was kind of humming along, talking to jurors, kind of in my own mind, selecting the ones I would like to keep if I could and mentally getting ready to challenge the ones I didn't think would be good for this case. The overview of the facts that my client and some friends had gone to a nightclub. My client had a gun. He left it in the car, as he should have, to go into the club and inside the club was being hassled by somebody. I never understood exactly why someone who may have had a connection to one of the other friends, but no big deal.
Don West: Then they leave at the end of the night, go out into the parking area, and this guy shows up and starts harassing my client again. It gets a little bit physical. My client retreats to the car thinking that it's safe there, purposely trying not to engage them, and the guy's not content with letting it go and essentially attacks the car, start slamming into it, kicking the windows. Eventually, it got so frightening to my client. He felt so threatened and vulnerable. There was no place for him to go that, as he smashed the car one last time, he shot the gun, and tragically, it killed him. He was being prosecuted for second-degree murder.
Don West: From a legal standpoint, my client was the passenger in the rear seat, could not control the car. The driver of the car wound up testifying that he was stuck in traffic. Everybody was leaving at that point. There was nowhere he could go-
Shawn Vincent: Sure. Pinned in.
Don West: ... to try to go away, pinned in. Whether it was good luck again or brilliant lawyering, I don't know. But before the trial was over, the driver actually testified that he was scared, and had he been my client, he would have done the same thing.
Shawn Vincent: Sure. Out of reasonableness standard.
Don West: Yeah. So back to the jury selection issue. I'm questioning jurors about their knowledge of firearms, whether they have guns at home or in their cars and how they feel about self-defense in general. I was talking to a juror who was very pro-gun. He had a lot of firearms. He was proud of it too, was an advocate for the Second Amendment and outspoken about it. I'm initially thinking this is pretty good stuff for me. This is a guy who starts for me defending my client from the right perspective. Then I wanted to get a little bit more information about his practice and views, especially when it comes to cars.
Don West: So I'm talking with him, and I say, "Well, I know you have firearms at home, and you believe in the right to protect yourself and others. Do you have a gun in your car?" In Florida, you can have a gun in your car without a concealed carry permit if it's under certain circumstances. So people can have guns in their cars that don't otherwise not allowed to carry them concealed. I just assumed it would be true, and I said, "So when you're out in your car, do you have a gun? Do you keep it in your glove box or somewhere?" He goes, "Oh my goodness. No."
Shawn Vincent: No.
Don West: It threw me back. I couldn't believe. Here's the guy. I thought it was a softball question. I never expected “no.” So in jury selection, you actually should ask why or why not, questions you would never ask on cross-examination because you really-
Shawn Vincent: Sure. But those sorts of conversations, you really bring up other people's opinions, right?
Don West: You want to know what they think, right? Whether it's good or bad, you need to know what it is. So I say, "Why not?" He goes, "I can't trust myself. I have a quick fuse when I am in a difficult traffic situation, and somebody cuts me off or flips me off. I don't think I can keep myself from reaching for that gun and waving it around. God forbid that I should ever take it to the next step, but I purposely don't have a gun in my car because I can't trust myself not to use it when I'm so pissed as I get when I'm driving a car and some idiot cuts me off."
Shawn Vincent: Wow. That's some remarkable self-awareness, right?
Don West: It is. It is. To his credit, I guess, whatever works for you because we have encountered our own series of road rage cases, whether it's doing this kind of work or just in the cases that we've touched and in legal work to know how volatile and how deadly that stuff becomes sometimes for apparently no reason, at least no good reason.
Shawn Vincent: We see these cases where inside the course of a minute, you can go from running errands to being in a gunfight.
Don West: Yeah. People that have never known each other, never expected, never would have known each other, but for the circumstance that brings them together.
Shawn Vincent: Yeah. Now, aside from more than 30 years as a criminal defense lawyer, you're at your national trial counsel for CCW Safe?
Don West: Yes.
Shawn Vincent: What does that mean?
Don West: As national trial counsel for CCW safe, I see in some way or another, all of the cases involving our members that come to the company, all of the claims, I see them at some point. Most of the time, I take the phone call from the member who has just experienced or is currently even involved in a self-defense scenario to help identify the resources they need. I identify and retain counsel on their behalf. Oftentimes I'll go to the location where the incident took place, attend court proceedings and become involved in marshaling and monitoring and helping fund their defense. I even consult with their local counsel for strategy. In some cases I've had a lot of contact with the member through the process, discussing the case and even doing mock examinations, practice cross-examinations, this sort of trial preparation stuff that helps the members feel confident that they're able to communicate effectively with the court and with the jury.
Shawn Vincent: Sure. There's a lot of other podcasts in the CCW Safe family of podcasts. Specifically, I'm a litigation consultant. I've had the great privilege to work with a lot of great attorneys on very interesting cases. I get to help pick juries from time to time. You and I have picked juries together before. I've been able to help you in voir dire. The focus of our podcast is to talk about the legal ramifications to a use of force incident, when somebody feels they need to use their weapon in justifiable self-defense, that next fight that we talk about. They've survived the first fight with the aggression that they faced, and now, there's this potential legal challenge to whether they're justified or not. So we look at these-
Don West: We look at the broad spectrum of that from post-incident when the smoke has cleared.
Shawn Vincent: Yeah. Now, how does the law look at that?
Don West: Now, what happens? Yes. We hope by providing this kind of information and written stuff and communicating with the members even one-on-one, the first interaction with law enforcement, for example, and from that point forward, what to expect if the case is referred for prosecution? What happens if you're arrested? What to expect in court. How much it would cost, frankly, if you were funding it yourself. Fortunately, CCW Safe members don't pay anything for the cost of the legal defense should they be involved in a self-defense incident.
Shawn Vincent: So now, as you're in your role as... trying because you've had a chance to talk to a lot of members.
Don West: Yes.
Shawn Vincent: Yeah. You've told me before that when we look at these road rage incidents, those are one of the most likely scenarios where concealed carriers could find themselves in a very difficult whole situation very quickly.
Don West: I've been involved in road rage cases on behalf of CCW Safe where shots were fired, where people were prosecuted for that, again, to people that never knew each other, that somehow get involved in something that escalates to potential lethal violence. But a lot of it is the loss of emotional control that ends up from a legal standpoint in a brandishing or an assault, somebody that displays a weapon under circumstances that are as considered reckless or threatening and winds up in somebody getting arrested and being prosecuted. We see that, frankly, all too often. In my experience, it's the easiest way for people to wind up that are otherwise living normal lives in a potential lethal situation and often in a legal situation that results in being prosecuted for something.
Shawn Vincent: Right. You're trying to specifically just about brandishing a weapon. You're in your car, things have gotten heated with somebody else. Maybe you feel threatened, maybe you're just angry, and you have a gun in the dashboard or in the center console, and you pull it out and show that you have it.
Don West: Yes. Exactly. Right. We see more of those in a road rage context than under any other fact pattern that I can think of.
Shawn Vincent: Kind of just lose their minds on the road.
Don West: That's a great way of saying it. They just become crazy, don't they?
Shawn Vincent: Yeah.
Don West: Everyone listening, and I know I can give you half a dozen incidents myself that I remember that moment when something happened that took just driving down the road to the next level where I wanted to react. I did react emotionally, maybe by yelling or perhaps more gesturing. But to think how quickly that can go when two people are willing to engage, both people then feel offended and violated, and then it just climbs the ladder to the point that somebody takes-
Shawn Vincent: They introduced a gun, and to the situation, they can get violent. Yeah. I'm pretty sure the first time my children ever heard the term “douchebag” was because of some sort of traffic incident that I was involved with. So let's look at our road rage case, right? This is going to be unique in the cases that we've looked at, in that, in this case, nobody was charged because everybody involved ended up dead. A lot of the cases-
Don West: This is as tragic as any case we've talked about and is unnecessary as any case we ever talked about.
Shawn Vincent: Right. A lot of the times, the worst case scenario in a case is that somebody is dead, and the shooter's determined to be unjustified even when there seemed to be some reason for them to have reasonable fear. So this case, we're going to go... This is Davie, Florida, so famous in Florida for being the first stage of ground state. We have a guy named Keith Byrne. He's a 40-year-old father of three. He's a Marine veteran, and he's driving a utility truck. He's on the phone with a friend, probably shouldn't be, and inadvertently cuts off another guy who's driving a blue BMW. It's 22-year-old Andre Sinclair. He's also a father. In fact, he's got the mother of his child and his child in his BMW.
Shawn Vincent: They come to a red light. Now, Byrne reportedly rolled down his window and said, "My bad." This is what the friend of his who was on the phone with him testified to. So he says he hears, "My bad." So we think that Byrne's trying to apologize for cutting the guy off, and then he hears shots fired. What we learned from local reporting and from the law enforcement agency that investigated is that Sinclair gets out of his BMW. He's armed with a gun, and he approaches Byrne's truck. I think I remember hearing some suggestion that Sinclair fired first.
Don West: Here's where I was confused, just for a second, as you were outlining those facts, because I had read at least one article on this. I think maybe Sinclair might even have been a passenger in the BMW.
Shawn Vincent: That might be true.
Don West: I think maybe his girlfriend was driving the car, and their child was in the car. Clearly, that Byrne cut him off and was apparently ready to acknowledge fault, I guess whatever traffic incident there was. So this even becomes a little more confusing and complicated. But let's assume all of that to be true, that Sinclair is the passenger in the BMW, his girlfriend drives, stops the car. Even under that scenario, Sinclair gets out of the vehicle to approach Byrne's utility truck. Byrne rolls the window down and by the account of the friend who overhears some of it on the phone call was preparing to or had already begun apologizing and accepting responsibility for whatever traffic incident took place.
Shawn Vincent: Right. But what happens instead is there's an exchange of gunfire. Perhaps Sinclair fires first. Byrne returns fire. Byrne is struck in the chest. He dies in the seat of his utility vehicle. Sinclair is struck less critically, but nonetheless fatally. He's taken to the hospital, and he dies later. Now, the police come immediately, and they investigate this. One of the officers who does the PR for the law enforcement agency said that they would have, after a brief investigation, arrested Sinclair had he not died of his injuries. So from what we know, he's clearly the aggressor here and by that account, Byrne justified in returning fire. You get someone pulling a gun and approaching your vehicle, especially if they're shooting, that's as justified as you can get, right?
Don West: Yeah. It may not even matter legally at that point who shot first. If Byrne is there in his truck, and he sees Sinclair approaching him, sees a weapon and sees Sinclair prepared to use it, you put all of that stuff together, and looks to me like an imminent threat of great bodily harm or death, the ability to use deadly force. I don't know what may have been said. This is another one. We don't know what happened. We only know the roughest outline because we don't know if Byrne saw Sinclair with the gun and reacted to that right or who fired first or whether Sinclair got the gun with the purpose of shooting Byrne as he got out of his car and approached him or if Byrne sees the gun, reacts to that, Sinclair reacts to Byrne's gun, who had reacted just . . .
Shawn Vincent: Those are all those nuances that you've talked about, the fact that. . . We've looked at nine different cases where we followed them all the way through the court case right up to verdict and sometimes into appeal, and during that process, lots of details come out. Some of this stuff, we're only able to talk about what reporters who were there in the courtroom talked about. You and I know there's all sorts of other stuff that jurors saw and beyond that stuff that the lawyers fought to keep out from the case, right?
Don West: Of course, yeah.
Shawn Vincent: So you can thin slice these things to the most minute degree. So we're talking in broad terms here about these cases. But in this case, what I see is here's a guy who, in all accounts, was justified, this is Byrne, in using deadly force. What little good that does him now because he's dead. There's something that Sergeant Leone from the law enforcement agency said about road rage scenarios. If you find yourself in one, just leave the area, even if you have to turn on a different street, right? I think one of the four elements of self-defense that we talked about in those nine cases that went to trial that we examined, one of those elements is deescalation, right, and that when you're a concealed carrier, and you have the weapon that can end all confrontations, that you have a responsibility to avoid confrontations whenever you can.
Shawn Vincent: We're talking about how angry people get in traffic and how quickly you said that these road rage instances are the only things we can go from zero to 100 in seconds, right?
Don West: You lose your mind. Yeah. This is the first time that we're really talking about some of those actual nuances. But let's take a minute, even if it doesn't get us anywhere at the end. Let's take a minute just in our human experience and our human experience with road rage and our experience understanding human nature and stuff and just imagine a couple of ways that this could have played out. We know the end was tragic. Both people died. We can assume the worst, especially on Sinclair's part because he got out of the car with the gun. He clearly started it. But can't you imagine that Sinclair is angry because he got cut off? We don't know what Byrne may have done, whether there was other stuff said or done or what have you.
Don West: Let's say Sinclair gets out with the gun being a jerk with the idea of just scaring the hell out of Byrne and saying, he gets out the gun and he wants to wave it at him and point him. He wants to brandish it. Not that he intends to shoot him at that point, but let's say he wants in his mind to teach him a lesson.
Shawn Vincent: He doesn't know that this guy is a gun packing Marine veteran. He thinks he's only one with a gun, and-
Don West: So he wants-
Shawn Vincent: ... "I'm going to show him."
Don West: Right. "I'll show him." So he gets out with the gun. He walks up to the car. Now Byrne's pretty confused. Here's a guy that he wants to apologize to for the traffic violation, and now he's coming at him with a gun. What is Byrne's natural response going to be to that? He has to think. He just has to think that Sinclair got out of the car with the gun to come up there and shoot him. It isn't likely statistically that that would happen. It's probably much more likely that he intended to scare him or just be a jerk.
Shawn Vincent: But that's not a gamble anyone wants to take.
Don West: No. He has to assume at that point. He got out of the gun for the purpose of walking up there and as stupid and ridiculous and as criminal as that is that that's a very possible outcome. So he has to get his gun, doesn't he, at that point to defend himself? Who knows that at that point Byrne doesn't see... I'm sorry, that Sinclair doesn't see Byrne's gun, and now it's two guys within a few feet of each other with guns, both of them feeling the other one's going to shoot them. In fact, that's what happened. Both guys are shooting, both guys die.
Don West: I think all of that because Sinclair got out of the car with a gun under circumstances that could never ever warrant that kind of response. It was stupid to get out of the car even if he wanted to give Byrne a piece of his mind. He walks up there and yells at him and walks away. But as soon as he escalates it to the point that-
Shawn Vincent: Sinclair, that is, brings the gun out. Yeah.
Don West: Yeah. Sinclair escalates it to the point that Byrne thinks he's in a life-threatening situation. There's no place to go.
Shawn Vincent: So essentially, it's mutually assured destruction, right? That you've got two people who are armed in a confrontation that happened with low context, right? They're not communicating. All of a sudden, the first attempt to communicate may have been seen as an escalation. You roll down your window. Maybe he's planning to get into it. That's a complication.
Don West: That's a terrific point that, from Sinclair's perspective, as he approaches the vehicle, the window goes down, and he may very well have interpreted that as a willingness for Byrne to engage.
Shawn Vincent: To increase the engagement.
Don West: Right. Why would he think that, all of a sudden, Byrne was going to apologize, right?
Shawn Vincent: Right. That doesn't seem the most likely.
Don West: So that is a recipe for disaster.
Shawn Vincent: Well, yeah. So as soon as the guns are introduced in that scenario, if both people are armed, you've just lit a fuse, right? It's almost-
Don West: It's like the-
Shawn Vincent: ... a point of no return here.
Don West: It's like the two guys standing in a pool of gasoline each holding a match. I'm sure you've seen that poster somewhere, right? It's assured mutual destruction.
Shawn Vincent: Yeah. So nobody's going to argue in this case that Byrne did anything wrong, right? Necessarily. He's certainly justified, and even the police are going to put all of the blame on Sinclair. If they both lived, Sinclair is the one that gets arrested and charged with murder or attempted murder if they both lived, right?
Don West: Sure.
Shawn Vincent: But that doesn't change the reality for Byrne that now that he's in this situation that this horrific result is most likely the one that's going to come across.
Don West: Absolutely.
Shawn Vincent: So what that means is if you're a concealed carrier, if you have a gun in your vehicle, then you want to avoid at all costs the confrontation that could potentially light that fuse and get you in a no-win shootout over whatever minor traffic violation that happened.
Don West: You can in hindsight look back and try to pick some points in time where something different could have happened. This is maybe a once in 100 million scenario. At the same time, the only way that would have stopped it for sure was for Byrne not to engage even in an attempt to be pleasant about it.
Shawn Vincent: Right. Even to go into a step further and just change course just to get away from the guy. Right? Even if he's going to a couple blocks in the wrong direction, just get disengaged completely because there's no way to apologize in that situation.
Don West: I think if Byrne sees Sinclair get out of the car, I'm going to assume for a moment that they were both at the red light, so that Sinclair's car was legitimately behind. They weren't both pulled off the side of the road, stop, but that Byrne stopped at a red light and that Sinclair's girlfriend stopped behind him. But as soon as Byrne realizes Sinclair gets out, he has to run the light. He has to do something to physically get away because there is no good outcome at that point. He can't take the chance to engage for fear of exactly what happened.
Shawn Vincent: Now, we talked about all the interactions that you have with CCW Safe members. I recall you talking about a member who shared a story with you about a road rage incident where he was able to disengage. Now, we're not going to use names or anything. But you remember the story where they ended up at a stop sign in a relatively rural place?
Don West: Yes, yes. I do remember. I'll just kind of paint a very big overview of it. But there was the potential for a serious road rage incident. I don't know if it started with someone being cut off or some perceived injustice. As often happens, one person starts following the other closely. You've seen those people that run up, and tailgates are real close, or they pull out around and slow down in front of you.
Shawn Vincent: Sure. I've heard about that.
Don West: Just being aggravating and trying to get you to engage. This was a similar scenario, where the guy got in front of him and then stopped at a stop sign or a stoplight. The member ultimately who was behind him at this point saw him start to get out of the vehicle. Essentially, he was blocked in from the front, and I think, if I remember correctly, he either believed he was going to get out or didn't even want to take the chance that he might get out and engage face to face. So he did the one logical thing that he could do. Fortunately, under the circumstances, he put his car in reverse and he just simply drove back 75 or 100 yards and watched what happened. I think, yes, at that point, the guy got out of the car, looked at him, then got back in the car and left.
Shawn Vincent: It's such a befuddling move at that point, and it was clearly a disengagement. It was as simple like, "I'm not messing with you. You win." Now-
Don West: Now, at that point that if the other driver attempts to engage, he's got 100 yards to walk or 50 yards to walk where the other driver can then reassess and calculate and decide what to do at that point, what other kind of evasive action to take or what have you. I thought that was so smart. It's gutsy to me in the sense that you don't want to give in. You don't want to throw up your hands and surrender. You want to meet face to face the idiot who if not causing the problem to start with is reacting unfairly to you, blaming you for something that even if you did it wrong, it wasn't that bad. It certainly doesn't warrant that kind of disproportional reaction. All of a sudden, it just starts churning, and people do such incredibly foolish and dangerous things.
Shawn Vincent: I know. I know. Some of the best marital advice I've ever gotten was the idea, do you want to be right, or do you want to be happy, right? So I’m quite content being wrong and happy frequently. I think in self-defense or something, somebody said, "Do you want to be right, or do you want to be alive, or do you want to be right and have someone's blood on your hands from a conflict that could have been avoided?"
Don West: Anytime you decide to engage somebody in one of those situations, you are making the assumption that they will act reasonably and rationally even under an emotional circumstance. That's a bad assumption because there's a lot of crazy volatile people in this world, and even otherwise pretty stable normal people have trigger points, and for some reason, it seems to be, driving is one of them that-
Shawn Vincent: Yeah. At the beginning of this conversation, you were talking about how often you'll field phone calls where people are in trouble for brandishing while driving, right? So brandishing is in most places, I think in Florida, it's just true is considered an assault, right? If you brandish a weapon, that's a threat of deadly force.
Don West: Yeah. It depends on where you are. Not all states have the crime of brandishing, but they all have some variation on assault. Assault is typically a pointed threat to someone. For example, if you point a gun at somebody, you're often guilty of the crime of aggravated assault. That would be assault without the intent to kill. It means non-justified assault, essentially.
Shawn Vincent: As opposed to a defensive display. We've talked about that before, where you're neutralizing a threat by demonstrating that you have force and are willing to use it and --
Don West: When you would have the right to use force. So the reckless display or the aggravated assault is when you don't have the right to do that. Assault is often intentional and pointed in a lot of places, has a mandatory prison sentence that involves a firearm. Brandishing is more of a reckless kind of waving around, threatening, not necessarily pointed at somebody for the purpose of shooting them or even for the purpose of making them think you're going to. But it's kind of a reckless display and is still a criminal offense. It can be a serious criminal offense.
Shawn Vincent: Here's why I bring this up.
Don West: But non-justified. It's not brandishing if you did it in response to a legitimate bonafide threat.
Shawn Vincent: Sure.
Don West: The problem is a lot of times it's not. It's too much force. It's trying to win the argument to prove that you're the one who's capable of using force.
Shawn Vincent: Yeah. So here's why I bring that up. I'm thinking about this case. We talked about, way some time ago, Indiana, south of Indianapolis in a rural community. We have two neighbors, one of them is a firefighter, and the other one is this crazy-haired wild guy. You know Laura Dern's father? What's his name, that actor?
Don West: Bruce? Bruce Dern.
Shawn Vincent: Bruce Dern. Picture Bruce Dern with his hair all crazy, acting crazy like Bruce Dern does. This is his neighbor. Apparently, they'd been at it for years. There's a fence dividing their property, the firefighters out working in his yard. He's got a security camera out there, full-color security camera recording for some reason, maybe because he's had problems with his neighbor before, right? So the neighbors there. They get at it. I don't know if you can hear what they're saying, but they're shouting at each other. This Bruce Dern neighbor, he's on his riding mower, and they exchange words. I think there's finger flicking exchanged. Then the lawnmower goes off frame, right? Then it comes back on frame. The Bruce Dern character on the mower picks up this revolver. He puts it in the air, and he shakes it. Kind of there's waves that like, "Hey, asshole. I've got a gun."
Shawn Vincent: Well, his neighbor, when he does garden work apparently is carrying his pistol that's loaded with 16 rounds, and he pulls it out and just unloads the whole thing on this guy. Couple of rounds hit him, and he falls off. The rest of the rounds hit the lawnmower. Miraculously, the neighbor stands up, walks back inside and calls for help, and he dies in his house. But all this is to say that brandishing may be illegal but is also the best way to get yourself shot.
Don West: Oh, sure.
Shawn Vincent: Right? Let's imagine in this case that Sinclair didn't have any intention to murder Byrne for cutting him off, but was trying to most likely really be the big shot here, right, by introducing the gun into it. You don't know who's carrying and who's not. I think Sinclair assumed Byrne didn't have a gun and that he had no control of this situation.
Don West: I think that's highly more probable than that Sinclair had gotten out of the vehicle with the intent of shooting him. I think you're right. He lost control, and all hell broke loose. It's interesting when we're talking about brandishing because, picture this scenario if you would. We talk about things that are really a bad idea. But they aren't necessarily against the law. Picture yourself in a parking lot, and two people are vying for a parking space. One of them sneaks in and grabs it, and you're angry because by all rights, that was your spot.
Shawn Vincent: He unclaimed it.
Don West: Yeah. You had been waiting for it, and this guy sneaks right in front of you, and you pull right behind him, and you get out of your car and walk up to this guy's window to give him a piece of your mind. That's not illegal. You can cuss out somebody. You can yell at him. You can go up there and criticize his driving and say, "You low life, what a lousy thing to do? I hope your kids don't see what kind of a ..."
Shawn Vincent: S.O.B. you are. Yeah.
Don West: Yeah, yeah, yeah. That's a free exchange of ideas.
Shawn Vincent: Yeah. Ideas.
Don West: Okay. But if the guy behind the wheel, and if the guy doesn't threaten him, if he doesn't raise a hand, if he doesn't do anything other than yell at him, you don't have the right to use force in response to that. You can't hit him because he thinks you're a lousy driver.
Shawn Vincent: Meaning you the driver of his car. You can't-
Don West: Yeah. You can't reach into your glove box or on your seat and raise a gun to point out to him because you don't like what he says.
Shawn Vincent: Because he's in your window giving you a piece of his mind.
Don West: A lot of this stuff I think starts out even like that. A guy that's a bit of a hothead but not necessarily intending any harm or any violence and just-
Shawn Vincent: Not necessarily wrong about the traffic, right?
Don West: ... puts themselves in a situation where it becomes volatile, not intending that it will ever go anymore. But they just want to vent. They want you to know for sure what a jerk you are, and then one little thing compounds, and another little thing. Pretty soon, somebody feels a little bit threatened. Then, in response, to the other person feels threatened. Then, pretty soon, either it escalates to violence, and the person who hits first is wrong, they're committing a crime, or the person that raises the gun has now introduced lethal force into what's otherwise a non-self-defense scenario and is guilty of a crime.
Shawn Vincent: So this makes me-
Don West: That is brandishing.
Shawn Vincent: This makes me think of the Ronald Gasser case.
Don West: Wow, sure.
Shawn Vincent: So we got to-
Don West: What a road rage case that is.
Shawn Vincent: ... New Orleans. It's Ronald Gasser. So he doesn't know that this guy that he cut off is Joe McKnight, a former Jets player, a local football hero who made good.
Don West: And the son of one of the sheriff-
Shawn Vincent: I don't recall that detail.
Don West: I may be mistaken by that, I apologize. I thought even his family may even have been connected to law enforcement.
Shawn Vincent: He's a local hero. But they didn't arrest Gasser originally. There was a lot of pressure to make an arrest. There is a racial thing too. Gasser's white, McKnight's black. The community was upset when there wasn't an arrest immediately. But notwithstanding, Gasser cuts off McKnight. There's a several mile, what the law enforcement described as a tit-for-tat road rage incident. They're cutting each other off and driving. People thought they were drag racing down. They had security cameras from multiple businesses showing them going till at least a couple of miles later. They come to an intersection where there's cars behind them. There's no room to navigate anymore. This scenario, no one's going to back up 100 yards. Right?
Don West: Sure.
Shawn Vincent: What we know is that McKnight gets out of his car and comes over to Gasser's vehicle whose window is down. There's at least one witness who suggests that Gasser said, "No, you come here." As in they were engaging with each other. McKnight comes to Gasser, leans into the window of the vehicle, meaning his hands, forearms, crossed the threshold of Gasser's rolled down driver's window. That's when Gasser says he felt threatened. He had a gun that he had already pulled out on a seat. He fires three times. McKnight dies. Gasser's eventually arrested. Eventually found guilty of second-degree murder. I think he just lost his last appeal.
Don West: He has a substantial prison sentence as a result of it, I think.
Shawn Vincent: Yeah, at least 17 years. Yeah. So McKnight wasn't armed. We know that actually there was a gun in the vehicle that he was in. He didn't bring it out with him. But this encounter, I don't know if Gasser was trying to apologize, like Byrne was in this scenario that we talked about earlier, but you've got somebody coming up to your window. You're penned in in traffic. You're strapped in with a seatbelt. You're very vulnerable. It's a scary situation. But-
Don West: But apparently, Gasser rolled the window down. There's no evidence that McKnight smashed the window. Correct? I think what was really in dispute was what McKnight's intentions were, even if he put his hands on the window frame of the door. Was that a threatening gesture, or was he just sort of resting there as he leaned in to give Gasser a piece of his mind.
Shawn Vincent: The appellate court just decided that that was not an aggressive gesture. Right? That that didn't because-
Don West: So you could not respond to with force.
Shawn Vincent: That's right. Because in Louisiana, they actually have on the books a law where crossing that threshold could open the door to a use of force incident, like a breaking and entry kind of thing, right? You've told me before that reaching into someone's vehicle in some places can be considered a felony, right?
Don West: A very serious felony. If you were to reach through an open window and hit somebody in the face that could under Florida law be considered burglary of a conveyance with an assault or with a battery, which could make it a very, very serious felony, as opposed to a misdemeanor if you just happen to hit somebody -- a battery. When you combine that with penetrating the space of the vehicle, it's like reaching through a window of a house and hitting somebody. It's a protected space. So the crime is additional crimes and enhanced crime.
Shawn Vincent: Yeah. But if you rolled the window down, or if you open the door, you're changing the scenario a little bit, aren't you? As-
Don West: Yeah. It's an invitation. It's consent of burglary has to be nonconsensual. So you can't open the door of your house or your car, invite someone in and then claim that they burglarized your place. If you invite somebody into your house, and then you get into a fight with them, and they hit you, that doesn't make it a burglary.
Shawn Vincent: Right. So we did the case out of Dearborn, Michigan, Ted Wafer case, where he shot Renisha McBride, where there's that threshold where the big mistake was that Ted Wafer opened the door in the middle of the night to a person who was pounding on it. He thought they were trying to break in, but you don't open the door for someone who's trying to break in, is the lesson there. So I think the lesson here, where we're always looking for the lesson for the concealed carriers in these cases that we look at, and the lesson here is you don't roll down your window in a road rage incident. I don't think anything can ever good come of it. It's an escalation. It's an invitation.
Don West: You made a great comment when we were talking about what Byrne did obviously in an attempt to begin accepting responsibility and apologizing how that could be misconstrued as a willingness to further engage and is not going to be assumed as being a friendly gesture. I think that it's going to be assumed as enhancing the level of hostility, frankly, misinterpreted so easily.
Shawn Vincent: So what I've written about this case, I basically called road rage a no-win situation for a concealed carrier. I think that the end, the only way to avoid it is to go.
Don West: Even if you're right. Even if it's the other guy's fault.
Shawn Vincent: Especially if you're right. Yeah. Just go the other way. Get out of the way. Drive conspicuously in the opposite direction to send the signal that you're not going to engage, that it's over, and then only if they've relentlessly followed you-
Don West: I made the comment that Byrne should have run the red light. I don't mean literally run the red light, but maybe-
Shawn Vincent: If it were safe for him to do so-
Don West: Maybe if-
Shawn Vincent: ... or to turn right or to ...
Don West: Whatever it took for him to improve his position of safety rather than exposing himself to the risk of not knowing what Sinclair had in mind as he was approaching his vehicle. Frankly, if he got a glimpse of the gun, he would have to assume the worst at that point.
Shawn Vincent: That sounds like a good last word on this case. Always a pleasure to chat with you, Don.
Don West: We don't always know where we're going, but we eventually get there, and-
Shawn Vincent: That's true about every place.
Don West: I enjoy these conversations greatly. I think that sometimes we may cover the same ground, but it's slightly from a different perspective, maybe from someone else's eyes as opposed to the way we first talk about it. I have to think that this stuff isn't hard, but that doesn't... It's not complicated, but that doesn't make it easy, I guess. It takes a lot of thinking and visualizing and frankly being very, very conservative in how you deal with people.
Shawn Vincent: Yeah. You approached me with the opportunity to work with CCW Safe and tell some of these stories, right, to communicate to the members some of the benefit of the experience that we've had together and what we-
Don West: Sure. That's right.
Shawn Vincent: ... see from here. I was excited about the opportunity because I believe in the Second Amendment, and I believe in the right to defend yourself. But I've seen, through my work, so many people get it wrong and people I think should be free go to jail for the rest of their lives because I don't think they had the imagination to understand what would happen to them after the fact. Most defendants that I've had a chance to work with don't even understand how a trial unfolds. When they pulled the trigger, they had no concept of all the legal nuances that they would face for doing something that they felt and had felt for a long time they were justified in doing.
Shawn Vincent: So like you say, it's difficult, but it's not complicated. I think really what we're trying to do is open people's imaginations as to how these things actually play out, how the aftermath of these things actually unfold in real life through stories that we find from people who've gone through them.
Don West: I think we learn by that. I know that when I used to study for a test, it was always good for me to take practice tests to put myself in a similar situation. That was usually more helpful to me in figuring out how to pass the test. I was going to take than it was just studying the material in a vacuum, actually looking at it in --
Shawn Vincent: What's the practical application that you're going to be facing --
Don West: Exactly. I think we do that a little bit. I think every time we expose people to the things that we've learned, that we've been exposed to by looking at this stuff and having experienced it, that we create an opportunity for people to connect with the information that they might not connect with if they just read a pamphlet or read a book on self-defense law. So that's --
Shawn Vincent: There you go.
Don West: ... enjoyable. As always, thank you.
Shawn Vincent: Thanks for talking.
Don West: Look forward to the next time we get together in person or across the country.
Shawn Vincent: Or through the powers of technology.
Don West: You bet that, Shawn.
Shawn Vincent: Don, take care.
CCW Safe Co-Founder and General Counsel Kyle Sweet speaks with CCW Safe Critical Incident Coordinator Gary Eastridge about what is involved in a critical incident response. Its genesis from officer involved shootings in law enforcement and how it has been changed and improved to serve all CCW Safe members.
Don West and Shawn Vincent explore two home invasion cases, with a focus on the choices the defenders made that justified their use of force, and the decisions that could have increased their legal jeopardy.
TRANSCRIPT:
Shawn Vincent: Hey, Don. Good to see you again.
Don West: Shawn, as always, nice to see you.
Shawn Vincent: So, I’ve got to ask some questions. You're, as most people know by now, a career criminal defense attorney.
Don West: Right, that's actually all I've ever done. I started my legal career at the public defender's office and have never prosecuted, so I understand and respect that job and there are lots of criminal defense lawyers that used to be prosecutors, but not me.
Shawn Vincent: Sure. And so I'm a litigation consultant, which is less straightforward, so I don't get to represent people. I don't try cases, I don't pick juries, I don't take depositions. But I have had a great opportunity to work with a lot of interesting lawyers on theme and theory aspects of the case. I've gotten into the legal mind even though I'm not a lawyer.
Shawn Vincent: I bring this all up because I want to see if you share the same problem that I have. Today, I took my kids to see Spider-Man, in the movie theaters, and this movie, like so many other action-type movies, I can't help but to count up all the felonies and misdemeanors that are committed throughout the course of the film, or tally up the civil liability that's being assessed while all this violence is going on. I'm just curious if this has ever crossed your mind watching a film, where you're like, "That's a felony, you can't do that."
Don West: You have to suspend disbelief and I suppose suspend any notion of accountability either. Otherwise, every scene has something that would land somebody in hot water of some sort.
Shawn Vincent: Right.
Don West: Either go to jail or get sued. Well, the stuff that you go see with your kids the superhero stuff.
Shawn Vincent: Sure. But even a classic car chase, how there are at least 20 lawsuits, civil lawsuits that would come out of that, plus multiple criminal violations.
Don West: Good point, I had a client one time charged with DUI. Left the roadway and hit a utility pole, bent the light pole. Got the criminal charges resolved favorably but she still got sued by the city to fix the light pole.
Shawn Vincent: So not a criminal, but out of pocket.
Don West: Had to pay for it, yes. Had to pay for it.
Shawn Vincent: That's not unlike what self-defense shooters sometimes face.
Don West: Sure.
Shawn Vincent: Right. That's what our podcast is about. We look at real life self-defense shootings, things that we've seen in the news. Sometimes, things that we've had an opportunity to be involved with from a legal perspective. We dissect those to look at how did these facts, as they played out, as we know them, as they are reported sometimes, contribute to what Mike Darter likes to call the fight after the fight. You've had this first fight, this self-defense scenario. Now there's potentially a legal fight afterwards and that legal fight could be first criminal liability and potentially civil liability.
Don West: No matter what, there's going to be a lot of cleanup of some sort. There's going to be the literal cleanup of the scene. We've had cases where the shooting took place inside a home, and several thousand dollars spent just to clean the place up from the event that took place. And there's the criminal process cleanup, the cost of hiring counsel and investigators and experts to sort all of that out. And then the cleanup, if there's a civil claim filed.
Don West: The so-called aftermath can be measured not just in a legal liability. It can be measured in dollars and cents. It can be measured in emotional cost. I think if there's any one theme that runs throughout our discussions of this, is that the first fight is only the first one and there may be at least one big one and several others to address after a self-defense incident.
Shawn Vincent: I remember one of the cases that we looked at deeply was the Markus Kaarma case, from Missoula Montana. And I follow up on these cases and the last bit of research I did on it, we know that what happened in that case is that Markus had been robbed previously. Someone had broken into his garage, not really broken in, he had his garage door open so they came into the garage and took some things of value. He had been monitoring it with a baby monitor thinking that some burglar might come back and try it again.
Shawn Vincent: One night, after midnight, or right around midnight, he sees a shadow in his garage. He gets a shotgun and goes around up front of the garage, which was opened. Then he fires in and he kills a 16-year-old foreign exchange student who is most likely trying to steal beer from his refrigerator. Garage hopping.
Shawn Vincent: We know that he was convicted after a trial and he's in jail for I believe the rest of his life. But also, that family, from all the way in Germany, came to the States and sued his wife, his common law wife, and the property and the estate. What hey got is undisclosed, but I assume a pretty big civil settlement that ended up resolving that side of things. So we hear about the criminal stuff a lot. We don't always hear about the civil stuff.
Don West: From our member's standpoint, we are so aggressive so early in the case defending the members, with the risk of criminal prosecution, that we get investigators and experts involved early, get lawyers involved. We have a critical response team that is dispatched to the scene immediately, for a couple of reasons.
Don West: One, to do the very best we can at that moment to make our members' chances the best they can be at successfully navigating the criminal investigation. But I think in hindsight, having gone through a few of these cases, we also realize that the more effort you put up front, the better the chances are of not only perhaps discouraging what might have been a close call on the criminal case, but also setting the stage not to be sued down the road.
Shawn Vincent: Sure. Understanding and identifying the mitigating factors and bringing down the risk and the liability.
Don West: Sure.
Shawn Vincent: That's interesting. One of the reasons I brought up the Markus Kaarma case is that was one of three burglary/home invasion cases that we looked at. One reason I thought it was originally interesting was because we feel that we know about the castle doctrine, right. Our home and our sanctuary, and you've said it's a special place. There's nowhere in the world where we're more justified in defending ourselves than when we are in our home.
Shawn Vincent: And then here you have a guy, Markus Kaarma, someone was in fact trespassing at least, in his garage, and because of some extraordinary circumstances, because of the fact that it was pretty well established that he was trying to lure someone back in to catch these burglars.
Don West: Yeah, I think that we really talk about that case, not because we think Markus Kaarma got a raw deal or was in some way unjustly prosecuted, but to point out so many mistakes that he made, so many avoidable mistakes that he made that ... That changed what might have been on its face protecting one's castle from an intruder, to what the jury and everyone else ultimately concluded was simply murder.
Shawn Vincent: Right. And that's what I want to explore today, is that fine line between self-defense and murder when it comes to home invasions or burglaries that you catch in the act. Because we'll talk about a case from Cincinnati, Ohio, where we know we have this mother of five, she lives in a home that she owns with the five children, her estranged ex, she has a restraining order against him. She herself has a concealed carry permit, even though she wouldn't necessarily need that in her home.
Shawn Vincent: He comes over, is causing a ruckus. He wants to get in the house. He eventually rips the air conditioning unit out of a window.
Don West: It's a window unit-
Shawn Vincent: A window unit.
Don West: That's mounted and the window is closed on top of it. So if you pull the air conditioner out, you have a big hole you can crawl through?
Shawn Vincent: Once he pulled that air conditioning out, he had essentially gained entry to the home, and that's when it looks like she shot him multiple times. He ended up getting taken to the hospital, survived those injuries and her children are safe. The police looked at it for not very long at all. And even the district attorney for Cincinnati, a guy named Joe Deters, he said afterwards that, "Thank goodness she had a concealed carry permit and was able to defend herself and her five children. It's hard to imagine what might have happened to her or her children if she had not been able to protect herself and her family."
Shawn Vincent: This is one of those scenarios where just like Joe Dieter says, the prosecutor, thank God she was able to protect herself and her children. And it seems like here she pretty much did everything right. She certainly, she didn't need to have a concealed carry to have a gun at her home.
Don West: Let's break that down, let's take a look at that.
Don West: That's the prosecutor not endorsing what happened because a life was nearly lost, but at the same time acknowledging that she acted lawfully and that as a result she was not going to be prosecuted. So, if we break that down, we know a few things just by those limited facts that are available on this. One, that she had attempted to use the legal process, the legal system to get some safety from this guy. A protective order is going to be issued upon application, claiming fear, threats, indicating prior incidents of violence likely.
Shawn Vincent: You have to go before a judge and make a case for it.
Don West: Yeah, there's typically a temporary order issued upon the application of one of the parties, and then that's served on the other party. and there's an opportunity for the parties to go to court, explain their situation to the judge, and then the judge makes a decision whether the protective order should be issued. And apparently based upon the information available, the judge said "Yes," and that order is going to require the person to stay away.
Shawn Vincent: He's legally required to stay away. And she's established, she's afraid of this guy. Whatever it was that convinced the judge to give the order.
Don West: Sure. Yeah. I think that that is the threshold that she did before she resorted to self-help the first time there was a problem, she took the steps necessary to use the judicial system and it didn't work. That's unfortunate. Sometimes it doesn't work and there's more violence and somebody dies. In this case, fortunately, as the prosecutor suggested, she was prepared and capable to defend herself as it turned out to be necessary.
Shawn Vincent: And her children.
Don West: So what we also know is that she herself is a law abiding citizen, because she wouldn't have a carry permit if she had a significant criminal history.
Shawn Vincent: Sure.
Don West: For whatever that's worth, that she lawfully possessed the weapon, that she took the steps to be able to lawfully carry it outside the home. I think all suggests that this is a responsible person who's trying to follow the law, dealing with someone who clearly isn't. We don't know what the relationship was like, but we know it had to have been volatile and we knew that he was ordered to stay away because of the protective order in place and that didn't work, and he went to the house. Obviously would not be deterred to gain entry if he went so as to pull the AC unit out of the window and then go through.
Don West: We also know it was her house, we also know that protective order made him a trespasser, if not worse, just by being on the property. So when the prosecutor looks at the equities in this case, he doesn't have to take her word for much of anything frankly. She's got the protective order in place.
Shawn Vincent: It's her home.
Don West: The air conditioner is on the ground, and he's incapacitated, having been shot. Now, no question that she had good reason to believe that he intended her harm. And I suspect with all of those circumstances and the factors at play, the law favored that and may very well under Ohio law, presumed that her fear of serious bodily harm or death was justified.
Shawn Vincent: Yeah. One thing I want to point out here too is, unlike Markus Kaarma, she doesn't run outside the house to shoot this guy. She doesn't try to engage him until he's gained access to the house.
Don West: She doesn't leave the door open and dare him to come in.
Shawn Vincent: Right. She doesn't go outside to meet the threat. She waits there. It seems to me, and this isn't explicit in the article that we've found about this, the reporting about this, but it seems to me that he was out there for a while, probably yelling before he got to the point where he was trying to rip the air conditioner out. I'm sure he was banging on the door or pounding on some windows at some point.
Don West: Sure, she didn't shoot him through the wall as he was trying to remove the air conditioner or through the window.
Shawn Vincent: Yeah. It doesn't say here, but I suspect she's the type of person who would have called the police while he's out there raging in her yard. And it was only when he had gone through the extraordinary circumstance of actually breaking into the house, and now had entry that she fired, and eliminated the threat.
Don West: And of course she would have known who it was. This wasn't a stranger to her. She couldn't write it off as a mistake, or that it was someone lost. She knew by virtue of what he did and how he was doing it in the face of the protective order and their history, judicial and otherwise, that-
Shawn Vincent: Sure, so you bring up whether she knew who it was, she did obviously. That has echoes of the Ted Wafer case. We reference that a lot when we have these discussions. Because that one was a real heartbreaking case. That's Ted Wafer up in Dearborn, Michigan outside of Detroit. It's very early in the morning, around four o'clock in the morning. He lives alone. He's in a rough neighborhood now and there's violent banging on the door, on the front door, moves to the side door, comes back around the, the floorboards are shaking, the pounding's so loud he gets his shotgun, goes to the front door during a lull and the knocking opens it up and he's surprised by a figure there.
Shawn Vincent: He doesn't know that it's a 19 year old girl named Renisha McBride. She tries to push through the screen. It seems like from the facts a shot is fired from a shotgun, it blows her head off. He claimed later that it was an accidental shot. I think you and I both agree that it was probably a twitch. He was scared, he was frightened, he was startled and he pulled the trigger and he didn't mean to shoot her, but it seemed like she was trying to break in. That was the case they made at trial.
Don West: And that may have been exactly what actually happened. That makes life really complicated though when you then claim self-defense, which by definition is an intentional act.
Shawn Vincent: Right, it's an affirmative defense, you meant to do it.
Don West: A justified intentional act.
Shawn Vincent: You can't accidentally shoot somebody in self-defense was what we've said before. And so the difference there, when you've got someone attempting to intrude your home, what you know about them becomes very important. If it's somebody that you've got a negative history with, that you suspect will do you harm, like this woman's ex-husband, who she had a restraining order against, you're in a more justified position.
Shawn Vincent: If it's somebody, if it happens to be the pest control guy or someone who -- the mailman, someone who has a reason that you found suspicious for some extraordinary circumstance, you're in a much worse position. And then if you don't know who it is, that you don't know, there is no ... That has an effect on the reasonableness of your fear.
Don West: Of course.
Shawn Vincent: Is that true?
Don West: Sure. One comment I wanted to make it in these facts, like we've always talked about if you just tweak one little aspect of it, you can take a legitimate self-defense shooting and turn it very quickly into a criminal act, perhaps murder. Can you imagine how emotional this whole thing must have been between these two people?
Shawn Vincent: We're talking the woman and her estranged husband?
Don West: Yeah. That he is willing to do all of that in the face of the court order, so he's not to be deterred. Apparently nothing is going to stop him until eventually some bullets did. And her, they've got this relationship. It's in the worst possible shape it could be in because she had to get a protective order. My guess is that their lives together and particularly hers have been a living hell for a long time.
Don West: She finally feels she's got the judicial process in place and she's safe and he winds up coming over, yanking the air conditioner out and going inside to face her with a gun. Can you imagine how much self-restraint and emotional control she must have had? Because we know he didn't die on the scene.
Shawn Vincent: To actually stop shooting once she had taken him down?
Don West: To actually stop shooting and not say to herself, if not out loud, you will never do this to me again and fire that last, that one final round.
Shawn Vincent: She didn't come around and shoot him in the head while he was on the ground and finish him off.
Don West: And we've seen those cases. We've seen those cases where all of a sudden self-defense becomes a murder. No prosecutor is going to defend that. The prosecutor would not let her off the hook for that if that's in fact what the facts turned out to be. You need to keep shooting until the threat is neutralized. But once the threat is neutralized and you are no longer facing that threat, you can't put one more round in for good measure.
Shawn Vincent: Well, and we call that every shot counts. Every shot fired will be judged on its own. And that first shot can be self-defense, the second shot could be self-defense. That last shot could be and sometimes is murder.
Don West: Other people have said every bullet comes with a lawyer.
Shawn Vincent: I also remember the Gyrell Lee case we talked about, and that's a guy who watched his cousin get shot in the stomach right in front of him, and then he had a gun-
Don West: And the gun turned on him.
Shawn Vincent: Then turned on him, and then he fired on the shooter, killed the shooter. He made a mistake of running away. But one of the things that we know really affected his trial, because the jury asked for the evidence of this was a suggestion that that last bullet was fired through his body that was laying on the ground and struck the pavement underneath him.
Don West: Yeah, they made a big deal about the forensic evidence. There was a divot in the pavement that the prosecutor wanted the jury to interpret that evidence as if it was the, what's the French term coup de grace.
Shawn Vincent: Is that it?
Don West: I think that's it, the one final shot for good measure and that ... Now in the Lee case, if I'm not mistaken, he was convicted.
Shawn Vincent: Yeah.
Don West: And then wound up with a successful appeal but had to face the whole thing over again.
Shawn Vincent: Right. Yeah, but I don't think he's faced it over again yet. I'm not sure the status of that case, but just proof of how those things can drag on for years and years.
Don West: Regardless of what the final outcome is, he spent the past several years in prison trying to get it sorted out.
Shawn Vincent: Yeah. Let's talk about another home invasion case. I think it's fair to call this a home invasion case. The difference between burglary and home invasion, Mr. Lawyer, counselor is what?
Don West: A lot of people confuse burglary with robbery. It's pretty hard to rob a house because a robbery contemplates a face to face encounter, accompanied by violence or threat of violence. So you can't legally rob an occupied house.
Shawn Vincent: Okay.
Don West: You burglarize a house. A burglary could turn into a robbery-
Shawn Vincent: If someone happens to be home.
Don West: Yes. And those are more often characterized as burglary, then with an assault. And that's a much more serious offense than just illegal breaking and entering. A home invasion is typically considered as forcible breaking knowing there are people inside with the intent of confronting them and robbing them, or terrorizing them, doing something, knowing that you're going to be face to face with another human being.
Shawn Vincent: Sure. So we talked about the Zack Peters case out of Oklahoma, and there we have three people dressed all in black, break in through the back door. They'd actually burglarized the guest house of this property in the recent past, and here they are at noon on a weekday, they break in through some glass, gain access to the house and then are surprised to find Zach Peters is there, armed with an AR 15. That was a burglary turned into something else.
Don West: Right. That would not be viewed as a home invasion robbery to start with. I tell you what, what commonly happens out there, and that's often common as home invasion robberies is when there is design to go inside and rob the people valuables or jewelery. But you see that kind of stuff all the time when people go into drug houses. Often other gangs will go into drug houses and rob the individuals there of their drugs. The goal is to go in and control and confront and take whatever they have of value, may very well be targeting their stash of drugs.
Shawn Vincent: Okay. That's interesting. So we're looking at this case out of Wichita where the homeowner there, he's a young guy, 18 years old, and two people that he knows, they're both 20 years old, come over in the middle of the afternoon, 2:45 PM on a Saturday. And according to police, they're trying to recover some property that's in dispute, that the 18 year old, the homeowner has. They've got a bad history, these three. These two guys are out there trying to get in the house.
Don West: The 18 year old is the homeowner or occupant. The other guys that he knows want something that they believe he has in his house, they claim is theirs. As I understand what you're saying and what I saw in the article is, they went there to recover some property of some sort.
Shawn Vincent: That's right.
Don West: It's never really been identified or described other than that particular property wasn't stolen unless they thought it was stolen from them perhaps.
Shawn Vincent: Sure. I think of this as the OJ Simpson scenario where he's going, he wants his trophy back. I don't know what it was that they were after.
Don West: That's a robbery. It wasn't like he broke into the place or the hotel room to steal the Heisman trophy back, confronted people, by force and threat, and that's what made him into a robber. That was, what'd he get? 15 years? Something for that?
Shawn Vincent: Yeah. I can't remember exactly, but ... Well, he's on Twitter now, so he's out, OJ.
Don West: Another day, another conversation.
Shawn Vincent: Yeah. Here, you got two guys that you know that you have something they want and now they're outside your door at 2:45 PM on a Saturday, trying to force their way in. Here's what the homeowner does. He fires through the door and kills them both, one of them shot in the back. Now from everything we've read in this report, it looks like he was not charged for these homicides. He was later charged because he had stolen property in his house. It wasn't the property that these guys were there after, so he's got his own legal problems. Well, one of them isn't apparently murder.
Shawn Vincent: And I bring this one up because I think we take a pretty conservative look at a lot of these cases and our mantra is, you never shoot until you absolutely have to. And usually that's when there is imminent threat of great bodily injury or death. And I think we would almost never recommend shooting people through a closed locked door. I feel like that's a recipe for some real trouble afterwards.
Don West: Yeah, I agree. That can be extremely hard to justify, although under certain circumstances, either legal or close enough, since you're protecting your home that you wind up not being prosecuted.
Shawn Vincent: Sure.
Don West: And that's typically a call that you don't want to make unless you're absolutely forced to and you can't make that decision whether you in fact are justified and feel the absolute need to do that until you're right there in the middle of it and can assess your own situation. What you think the odds are against you, and in this case he knew who these guys were. I assume he knew what they are capable of. He probably felt he knew what they intended, if they were able to get inside, and may very reasonably have felt that he couldn't have protected himself adequately if they got in -- that he would have been overwhelmed.
Shawn Vincent: So it's two against one. Maybe he believes that they're armed, maybe they got shotguns, I don't know. But once that door's down, he's at the disadvantage is the idea.
Don West: And we have some other things going and that is not only did he know them, but that it seemed pretty clear that law enforcement accepted the explanation that they intended to break their way in. They were trying to force their way in as opposed to other cases we've talked about where some crazed person or drunk person or lost person isn't necessarily trying to commit a home invasion robbery, but rather get some attention, maybe even in their mind get some help, but they raise a hell of a ruckus outside banging on the door, the Renisha McBride case.
Shawn Vincent: She was probably looking for help and her actions were interpreted as an attempt to break in, but they were actually an attempt to get help. She was confused and disoriented
Don West: Whereas these guys apparently we're not going to stop until they got in and there were two of them. And yeah whether there could have been some ... Could have exercised better judgment or different judgment hindsight may tell, but at this point any way from the initial investigation, apparently law enforcement decided it was justified and it was his house, let's not forget that. Like you said before, that is your sanctuary. It's a sacred place. It's highly protected. And if the law is ever going to favor your use of force. . .
Shawn Vincent: Give you the benefit of any doubt, right?
Don West: Yeah. You remember our other conversations that we've had where I use this phrase that struck me, it's subjective forgiveability.
Shawn Vincent: Yeah, right.
Don West: The idea that even if you don't do it 100% right, unless it's clear you're doing it wrong, or you aren't justified, then as the homeowner who is being subjected to criminals breaking in or some other kind of threat, then you're going to be given the benefit of the doubt in your house.
Shawn Vincent: Right. So our mother of five, with all of these things that we know about her, the protective order that she's a law abiding citizen, she owns a house. She's got the children, she has a concealed carry permit. She waited for the air conditioner to be ripped out before she fired. All those things, anywhere where we might've had a subjective look at whether she was right or wrong, we're forgiving her, because she's got everything lined up on her side.
Don West: Right.
Shawn Vincent: This guy in Wichita, he doesn't have five kids in there and he doesn't have a restraining order against these two guys, but apparently there was enough of a documented history between them that it seems like, he seems reasonable to fear them. And then we get into this other thing I wanted to talk to you about is, a lot of self-defense statutes and they're a little bit different in every state, but a lot of self-defense statutes are, you're allowed to use deadly force when there's an imminent threat of great bodily harm or death to you, right?
Don West: Yes.
Shawn Vincent: And sometimes. . .
Don West: That's the law in all 50 States. Some States still require a duty to retreat, so you can't use that force unless you've exhausted a way to avoid using it safely. And stand your ground states, you don't have to retreat first, but nowhere can you respond with deadly force other than a threat to yourself of deadly force, except in very rare circumstances, and that happens to be in the house.
Shawn Vincent: Right, in order to prevent a forcible felony is often what the statute reads. And some of them, I've read like in Colorado for example, I remember reading that that includes specifically your house. They'll address specifically that someone breaking into your home, there's this presumption that. . .
Don West: Yeah, you bring up a good point, we should try to make that a little more clear. Andrew Branca, that we think the world of who wrote the book, The Law of Self-Defense and blogs, and offers a lot of content for gun owners who want to know the law of the jurisdiction, where they live and where the boundaries are. So we encourage people to take advantage of his vast knowledge to improve their own. He calls the home the highly defensible property. So, that's where you're going ... That's the most defendable place you can be on earth is your house.
Don West: Now, what you were talking about was another aspect of self-defense that doesn't necessarily require the actual threat to you, before you can use, in this instance, deadly force, and that is a lot of places including Florida in particular, allow for the use of deadly force to prevent the commission of an aggravated felony. And there's a list of those in most statutes. What is an aggravated felony, robbery, murder, rape, kidnapping, those kinds of things.
Don West: And you can use force to prevent someone from committing an aggravated felony in most places. And that doesn't necessarily require the specific threat, life-threatening event to you, but you do have to be right, and you have to be able to perceive the circumstances correctly. And if so, you have the right to protect someone from being raped or robbed or kidnapped.
Shawn Vincent: Right. Or from breaking into your house.
Don West: Yes. We talked about Florida a little bit. The Florida statute provides that not only can you use deadly force to defend against, a threat, a threat against your life, but in Florida, if someone is breaking into your house, forcibly entering your house, the element of reasonable fear is presumed just by virtue of those circumstances, it's your house, they're trying to force their way in, your use of deadly force is presumed to be reasonable.
Shawn Vincent: You're allowed to assume that they're going to do you harm if they come in and you're there. They've broken into your house. Now here's where the conversation gets interesting, because we've got this great letter from a CCW Safe member, we're going to talk about it anonymously to protect the identity, but we can share the story. And the story is that this man lived on a small ranch with his wife and two children.
Shawn Vincent: And it's just before midnight out here on this ranch, a rural, desolate area, and this guy comes up on his porch wearing nothing but blue jeans. He's a little bloodied, he's clearly been in a fight, he's either intoxicated or in some way otherwise out of his mind. And he started yelling that he wants to entry to the house. He's banging on the door over the course of 20 minutes. He tries to steal their ATV. He tries to use the swing bench on the porch as a ramrod to get into the house. He pulls up bushes and throws them at the windows.
Shawn Vincent: All this time, the homeowner had a pistol and a flashlight, I think, out. That you can see through the windows this guy, he lets him know that if he comes in the house, he's going to shoot him. Meanwhile, his wife's on the phone with 911, in a locked room in the back of the house with the children. It's going to take 911 out here in his ranch 20 minutes to get out there, and during that time, he keeps his cool and there's one confrontation at a backdoor, which was a big pane glass in it where he was face to face with this guy.
Shawn Vincent: And he wrote to let us know that he was remembering the Ted Wafer story that we wrote about. Don't open the door, don't go outside. This man decided that he was going to wait for this person to cross his threshold before we fired, that he would resolve to shoot him if he did, and he told him so. And as fate would have it, the police arrived in time, they take the guy down, nobody’s shot; nobody's killed. There's no legal inquiry, at least for the homeowner at this point, and there was the best possible resolution of a terrifying situation.
Shawn Vincent: And I would suggest that, especially at a point where maybe this guy is using a swing bench to try to ram down his front door. He may have been justified like this guy in Wichita who someone was trying to forcibly enter his house. I suspect the right police department and the right prosecutors would look at that and say, you're all right here. But you're in gray area or you're in a grayer area than if you are to wait for that threshold -- for the window to be broken, for the air conditioning unit to be ripped out.
Don West: One of the things that Andrew Branca talks about is managing your risk and of course with training and experience and such, you manage your risk by being better prepared to defend yourself if and when necessary. But you also can manage your risk in the legal context. And what you're saying may in fact have been true under those circumstances. He may very well have been legally justified to fire and shoot this guy under some of the circumstances you've described. But at a very minimum, we know that his legal risk skyrocketed at that point.
Shawn Vincent: Sure.
Don West: And it went from zero to something unnecessarily, and the guy had enough. He thought it through. He realized that he wasn't actually in danger. His family wasn't actually in danger at that moment. And if his level of physical risk increased, he was prepared. But he wasn't going to do anything to make himself more vulnerable, or frankly, to increase his legal risk.
Shawn Vincent: Yeah. In this case, this is a guy who seems unarmed, just crazy and he had established a threshold that he was comfortable with. You talked one time about, and maybe this is a Andrew Branca thing, about buying yourself time in these critical decisions, right?
Don West: That's important to me, and I don't claim to be any kind of expert whatsoever on the tactics side of it. It just makes sense that a lot of what goes on is trying to figure out what's going on. What does this person intend? How much of a comfort zone do I have before I have to take decisive action? And the more you do to give yourself the opportunity to assess it, I think the better decision you're going to make.
Don West: And you may not have any time whatsoever and you have to react, but if you can get away a little bit and give yourself another chance to see what's going on, that's more helpful than not. And if you can get completely away then ...
Shawn Vincent: Sure. Well, and then Zach Peters, after he shot those guys, he didn't know if he had killed them or ... He retreated his room locked the door and called the police. So even though he knew he had people still in the house, he knew he was home alone and he went to a safer place in the house. This guy on the ranch we talked about sent his family to a safer place in the house. I just have to think, when I look at these cases, I see thresholds all along the way.
Shawn Vincent: And if somebody trips in alarm and still continues to try to get in, they've crossed that threshold. Our mother of five waited for a threshold to be opened before she shot. Ted Wafer made the mistake of opening that threshold himself, forcing the conflict. And so I guess we might have 10 thresholds and somewhere on the first one, we might be unjustified or have what you talked about this high legal risk, but the more thresholds that get crossed, more likely you have more time to consider your options.
Shawn Vincent: Your legal risk depending on the circumstances might go down and if you're forced at last after having allowed those thresholds, recognize and allowed it, I mean the, there's ... We talked about reasonableness in all of these shootings that the reasonableness becomes greater and greater I think as known thresholds are crossed.
Don West: That's an excellent point because that's what the case will hinge on eventually. No matter what happens, the prosecutor and then ultimately the jury will have to decide did you act reasonably under the circumstances? Another point that Andrew Branca makes, which I think is so important for people to know and that is, when you're talking about a stand your ground state, meaning that there is no legal duty to retreat, just as a brief refresher, if there's a legal duty to retreat, that means you have to try to get away if you can do so safely before you use deadly force-
Shawn Vincent: Before you're justified of it.
Don West: While facing a threat of serious bodily harm or death. Stand your ground basically means is you don't have to retreat, but you can if otherwise justified, you can meet force with force. But Andrew points out brilliantly that depending on where you are, there are certain stand your ground states that he calls hard stand your ground states, and other states that he calls soft stand your ground States. Both stand your ground, but the difference being in a hard stand your ground state, the opportunity to retreat or the failure to retreat isn't admissible on the question of whether you acted justifiably.
Shawn Vincent: The prosecutor can't suggest that because you didn't retreat in this hard stand your ground state, that that somehow reflects on your judgment or your fear.
Don West: Yes. And that your conduct was unreasonable. In the soft states though, even though you had the legal right to stand your ground, the prosecutor may very well get away with arguing that sure he didn't legally have to get away, but he had these clear opportunities to avoid this and to get safe. And no reasonable person, no one who really was trying to defend themselves would not have taken advantage of that. So this was a guy looking for a fight. This was a guy trying to be aggressive. This was a guy who, who just missed any opportunity to avoid the confrontation. Therefore, ladies and gentlemen, when you look at the totality of the circumstances and what this person did, it's unreasonable.
Shawn Vincent: And we know in the Gyrell Lee case, that's the guy whose cousin was shot and he shot back, the prosecutor in that case made that argument in court, that a reasonable person would've gotten out of there.
Don West: Yeah, so the jury could very well find all of the other elements of self-defense to be satisfied except the reasonableness one.
Shawn Vincent: Right. So in the stand your ground state, the duty to retreat is removed, but that's just for that first threshold for whether you're justified or not. I think that if you can try to retreat safely, then you become more reasonable.
Don West: Yeah, I don't know any advisor or instructor for that matter, any trainer that ever says don't retreat if you can, don't avoid the confrontation if you can, because you can't control the outcome. All of a sudden your risk is then gone up and the risk of killing somebody, the risk of being killed, the risk of going to prison for the rest of your life is just infinitely greater than if you were able to get away.
Shawn Vincent: Well, I think about this rancher and what he was able to do, take everything else off the table. He was able to turn this into, for his kids: “I remember that night, that crazy guy was banging on our door,” kept it from being, “Remember that night that daddy killed somebody on our porch,” justifiable or not. The trauma on his family is so different because he had that judgment, and that he established those thresholds. I think that's the lesson, whenever we had these conversations, we're looking for the lessons for the concealed carrier, to be ... Everyone who has got a concealed carrier permit is there, because they are interested in their own, they're taking responsibility for their own protection.
Don West: Yes. The protection of themselves, the protection of their loved ones, of their home.
Shawn Vincent: And a lot of people who carry, I believe responsible people, will have gone through scenarios. They're trained for scenarios often of where this might happen so that they can survive it, their family will survive it. And then what we talk about are what happens after that. And we talked about Bob O'Connor all the time and his “warrior mindset.” His mindset and his judgment where if, if beyond just thinking about the tactical scenarios where you might need to use your weapon, thinking about the ... We're talking about the legal scenarios here and when you can safely, if you have the judgment and the mindset, and can safely buy yourself that time and recognize the thresholds of where the threat is and when it becomes critical.
Shawn Vincent: And, we're talking about split second decisions here, but recognizing those thresholds allows you more choices than just that one choice, whether to pull the trigger or not. And that can be the difference between killing somebody or not, being killed or not.
Don West: Yeah, we know statistically it's highly statistically unlikely, but we also know what happens and it happens fairly frequently. But as you take that responsibility, I think the better you can train your brain to react appropriately under that high stress moment of having to make those decisions. You can also train your brain to know the boundaries better. That helps define your own conduct, and all of that together helps you avoid what could turn out to be a lethal confrontation.
Shawn Vincent: We started this conversation now talking about watching movies like Spider-Man and chalking it up all the felonies and misdemeanors and civil liability that happens. But I think when we talked about that mindset, if you're a concealed carrier, you end up when you choose to carry, walking around needing to contemplate what is my liability in these situations? What's my responsibility as a carrier? What's the risk I have?
Shawn Vincent: And this, call it tactical awareness, if you will, on adding the legal aspect of it, it's understanding, I'm in a parking lot at night now, at the convenience store at 2:00 AM, this is a place where people get shot. This is where things happen. I'm at risk and I'm armed and right now my liability is high. I'm at home, I've got a security system, I have lights in my yard, I'm where I'm meant to be, my liability and my risk is low. I think these are things that we need to think about all the time when we choose to carry-
Don West: Yeah, and I think the experts would say, if you're in a high risk situation by choice, don't do it. Go someplace else. If you have to be, then of course everything else has to kick in, but you also keep yourself safe by understanding what a high risk situation is and taking steps simply to avoid making yourself vulnerable or increasing the odds that there's going to be some problem. What's that App that Mike has, Mike Darter, he's got an App on his phone. It's, shoot, I wish I knew the name of it, crime something.
Shawn Vincent: Crime maps, that shows how at risk you are?
Don West: Yeah. It's find you and basically tell you what kind of spots you're at, what the crime rates are. Is it relatively safe or relatively dangerous?
Shawn Vincent: That's interesting. I like to take very long walks and sometimes it's behind the building or someplace on a route to go somewhere. And other places I'm more comfortable than others. And there's some places where I've mapped out a long walk in advance and like, you know what, I don't think right there, I'd be comfortable unless I had a gun with me. And then I stop and think, well, if I'm not comfortable there without a gun, and I don't have to go there, then I just don't need to go there.
Don West: Yeah.
Shawn Vincent: And that's the mindset.
Don West: That's what we're talking about, isn't it?. Thinking it through. Making some decisions with the goal of being safe and reducing your risk. Don't be a victim.
Shawn Vincent: Yeah. Don't be a victim, and sometimes walking away or avoiding the aggressor is how you avoid being the victim of the bigger system, the victim with a legal system.
Don West: There you go.
Shawn Vincent: Or of your own temper or of a mistaken identity. All those things.
Don West: So many things that could go wrong.
Shawn Vincent: Well there we did it, it's another episode in the can, and a real pleasure to talk with you.
Don West: Thanks as always, look forward to the next time and be good, be safe.
Shawn Vincent: Be good, be safe. Take care.
Don West and Shawn Vincent explore the Gyrell Lee case, a case Shawn calls, “a perfect example of how can you take such a clear-cut justifiable use of force and ruin it with your behavior before and after the shooting.”
TRANSCRIPT:
Don West: Welcome to another episode of our ongoing podcast In Self-Defense. Hi, I'm Don West, national trial counsel for CCW Safe and a practicing criminal defense attorney. I'm here with litigation consultant and the author of our ongoing self-defense articles, a compliment to our podcast and co-host of this podcast series, Shawn Vincent. Hey Shawn.
Shawn Vincent: Hey Don, what's happening?
Don West: Nice to talk with you again. Do we have something interesting and informative today?
Shawn Vincent: Well I'd like to think that we always have something interesting and informative, but today I am excited to talk about this case because when I wrote about this case, we got some interesting comments from the readers. They basically said if you can't use a gun and deadly force to defend yourself in this situation, then when can you? But yet, as clear as the details seem to some of our readers, this guy still got convicted of second degree murder and sent to jail for this self-defense incident. This is going to be the Gyrell Lee case. You've done a little bit of reading up on this too because when we get to the end of this, there's a lot of interesting things that are happening in the appellate court on this case.
Don West: That's exactly right. Unlike some of the cases that we analyze and talk about and break down into our four perspectives or elements of self-defense, this is one that has a very clear procedural history where the incident took place, there was a jury trial, ultimately a conviction and then at least -- well, there were two stages in the appellate process, and I think the issues are important for our listeners to be aware of and I think overall this is a cautionary tale that will be of significant value for anyone that may find themselves in a potential lethal self-defense scenario.
Shawn Vincent: Yeah so we're looking at self-defense case that was so controversial, or so close to the line -- you and I have talked about this thin line between self-defense and murder, right? In this case, it's so close to that line that two of the jurors who convicted him with second degree murder were crying when they delivered this verdict. That's how upset they were, and then the fact that the Supreme Court in North Carolina stepped in and ended up vacating that conviction on a couple of important legal issues just shows how close it is. Let's ratchet it up one more time. We've done nine of these. This is the eighth out of nine that we're covering. All of them that we've looked at so far involved a shooter who shot an unarmed person. Right? In a lot of these cases there was some suspicion that maybe they had a gun, they didn't know if they had a gun, but in the end the person who died, the attacker in some of these cases or the intruder in some of these cases ended up to be unarmed -- hich obviously right off the bat makes them a very complicated case for the shooter.
Don West: Yes.
Shawn Vincent: Right, that imminent threat of death wasn't as real as maybe the shooter thought it was at first. This case, the attacker, the guy who died, had a gun, had just shot the defendant's cousin right in front of him, and then had turned the gun on him. That's where some of the readers of the column were like, "What the heck? If he can't use deadly force in that scenario, when can you?"
Don West: There are some facts in this case. I guess they're facts in that this is information that was in the case that impressed the jury enough to ask questions and impressed the prosecutor enough to emphasize focusing on specific aspects of those final seconds which gave the prosecutor an argument why this wasn't self-defense, but murder. Probably had some pretty significant impact on the jury because they asked a specific question, asked to review some testimony that related to a divot in the asphalt. I don't want to get too far ahead of us on the facts.
Shawn Vincent: Sure let's dive right into the story then.
Don West: Let me quote to you just-
Shawn Vincent: Please.
Don West: ...two sentences from one of the appellate opinions that I think really helps set the stage for this discussion and emphasizes exactly how these self-defense cases can turn out to be only matters of seconds in terms of what's legally important and then what is factually significant. We talk about these cases often from minutes that lead up to it or an ongoing sequence of events that culminates, but from a legal perspective whether there is that imminent threat, whether there is an opportunity to retreat, if there's a legal requirement to retreat, whether there is proportional force, whether there is force used after the threat was neutralized; all of that stuff typically boils down to just a matter of seconds. The court in this case, this would be the North Carolina Supreme Court, in its opinion said this case is about what a man did in the few seconds after he saw his cousin get shot.
Don West: We, meaning the court, now have to consider that man's response to this violent event in light of the doctrines of self-defense and defense of another under our stand your ground statutes. So I know you'll lay the factual context for this and it extends well beyond just a matter of seconds, but this is the Supreme Court of North Carolina saying that's where they focused their analysis. That's where they decide in this instance, whether there were mistakes made at the trial level that would warrant a new trial. So that's why I think in some regards it's a cautionary tale factually because there's a tendency in self-defense cases for people to get hung up on things that happened well in advance of the critical moment and sometimes to ignore those things that happened right after, which could factually and then legally, turn what might be a legitimate self-defense shooting into a criminal act.
Don West: What we have in this case are aspects of all of those things that we can expand in more detail and discuss how that might impact someone that's listening should they ever become involved in a lethal self-defense situation. So sorry for the bit of a ramble and diversion, but Shawn let's talk about the context of the Gyrell Lee case factually.
Shawn Vincent: Sure. So here's what we're going to do. We're going to take ourselves Elizabeth City, North Carolina on the wee morning of New Year's Day, 2013. That's when Gyrell Lee, a guy, 24 years old, is spending New Year's Eve into the morning with his cousin who he considered his best friend, Jamieal Walker. So they're at Jamieal Walker's house and they're hanging out, outside sort of around the side of the house through most of the evening and there's a guy named Quinton Epps, who according to the newspaper was a known troublemaker who had a little bit of beef with Walker. He comes by multiple times throughout the evening. It starts out calm enough, but everyone's drinking. Epps comes by. Each time he's more agitated. Each time the verbal confrontation becomes more aggressive, perhaps not more threatening, but there's this mounting tension.
Shawn Vincent: At a certain point in the evening, Lee told investigators that he went to his car. He's a licensed concealed carrier. He pulls out his .45 pistol and carries it with him now. He said, “just in case.” Indicating that he had some indication to think that things might get violent perhaps. Epps comes by again, he slow-rolls past Walker's house and ends up parking his car a couple of houses down the street. Walker and Lee decide to walk down the street. They left the relative safety of Walker's house, walk down the street to meet Epps there. Once they get there, a verbal altercation breaks out. It gets very heated. Lee can see that Epps has a gun behind his back.
Don West: Now at this point Shawn, the confrontation or the escalating argument is not between Lee and Epps, but Epps and Lee's cousin.
Shawn Vincent: Yeah, Lee's cousin Walker. So Walker and Epps are into it. Lee's basically just maybe a bystander at this point, perhaps he's there intentionally to basically get his cousin's back if things go down. That's something that becomes, I think, an issue for the jury when they have to deliberate this case.
Don West: Even though there's nothing illegal about him getting his gun. He's licensed to have it and having it -- the prosecutor no doubt would attempt to say that Lee was preparing to do violence with the gun, whereas Lee would say I was taking some precautionary steps that if this thing got out of control, I would be able to protect my cousin and myself.
Shawn Vincent: Exactly and that's the tack that the defense attorney would take at trial, but in the end you and I both know that it's up to the 12 folks that you pick for the jury that are going to make that judgment. He did, he went there, he saw that Epps had a gun behind his back. Lee retrieved his pistol and then the verbal fight gets to a point where Lee's cousin Walker punches Epps in the face. Epps's response to this is to reach out, grab Walker's top of his hood on his hoodie, and he takes his gun and he fires multiple times into Walker's stomach. He shot him multiple times point blank range. Walker runs off and he ends up finding his way behind some house where he dies and he's found sometime later. Then according to Lee, Epps turns his gun to him and that's Lee's now or never moment. He has his gun in his hand. He fires eight times and Epps falls to the ground. He eventually bled to death there in the middle of the street.
Shawn Vincent: I mean it's important to add here that in a jailhouse call that the prosecutor's got their hands on, Lee says that he would've shot earlier to protect his cousin, but in the tussling, he couldn't "give a clear shot."
Don West: So we have the issue raised through this call, but also there's some factual support I guess that there could be a claim defense of others.
Shawn Vincent: Sure. The point, the Supreme Court Justices makes note of that.
Don West: Yes that's exactly right and under certain scenarios you do have the right to defend another if you had the right to defend yourself under the same situation, and I think under the facts as you've outlined them as they played out, there was clearly a point in time where Lee would've had the legal right to defend Walker against Epps, but as he then later explained that you just pointed out, he said, "I was going to do that. I was thinking of doing that.” But because of where they were and how they were positioned together, he didn't have a clear shot. So I guess what he's really saying is he was afraid he would shoot his cousin instead of Epps.
Shawn Vincent: I think that's right.
Don West: Keep in mind that whole thing probably lasted three or four seconds. Four or five seconds maybe.
Shawn Vincent: Of course, it always takes way more time to describe it than these events actually happen.
Don West: So then the critical fact there becomes, after Walker is shot, Epps turns and turns his gun toward Lee and by then, Lee has his gun out and is physically able to operate it and winds up shooting Epps several times, ultimately resulting in his death.
Shawn Vincent: That's right, and then what happens next is very critical. Everybody including Lee flees the scene. Everybody takes off leaving Epps to die there in the middle of the street. In fact, Lee went and hid his gun under a garbage can and then fails to call the police. So when police get this phone call, there's shots fired. They show up, they find Epps's body there, they start getting witnesses together, and then they eventually find Walker a couple hours later dead behind a house. What they've got on their hands is a double homicide. They're looking for somebody who's murdered two people.
Don West: Sure. They have no information to the contrary at that point.
Shawn Vincent: Well they certainly don't have the shooter making a self-defense claim at this point do they? Instead they ended up coming to pick him up the next morning. They're looking at him for a double homicide. It was shortly thereafter, according to press reports that it was clear that they were only looking at him for the murder of Epps. They figured out Walker was the cousin, but now he's got a real problem on his hands.
Don West: Sure. In addition to fleeing or rather failing to report, he also as you mentioned if not I will, he hid the gun.
Shawn Vincent: Yeah.
Don West: Well the prosecutor looks at this stuff and screams “consciousness of guilt.” This isn't an innocent guy. This isn't a guy who well may have committed the intentional act of firing his gun into someone else resulting in their death, is thinking that he did something wrong, so he is thinking that he better get out of there -- and then compounding that by thinking he'd better get rid of the evidence that might connect him to this. So Lee starts off with a couple of big strikes against him in putting forth a self-defense claim.
Shawn Vincent: He does, but then he also starts out with this idea that he just watched his cousin be gunned down in the street by this guy who is still armed -- certainly capable and seemingly willing to turn the gun on him, on Lee. If you don't have the right to defend yourself in that situation, when do you have the right? That's what the CATO Institute thought. They actually wrote a brief, a friend of the court brief, and submitted it when this appeal was going on. They wanted the Supreme Court of North Carolina to consider their arguments which is essentially that. In a case where there's such clear violence happening right in front of you and you're next. If not then, when? is the real question.
Don West: That's exactly right, Shawn, and I wasn't suggesting otherwise. What I was suggesting is that that explanation which seems to be corroborated by some physical evidence and ultimately maybe some additional testimonial evidence, took a while to get to the police because of the actions that Lee took immediately afterward that would raise questions about whether that explanation was in fact true or whether it was a story made up after the fact to claim self-defense.
Shawn Vincent: That's what makes this case fascinating. From one perspective we have some really clear mistakes that were made that are going to weigh against him, but we also have on its surface what seems to be such an imminent and reasonable fear that you should have clear-cut self-defense. So with that set up, when we look at these cases, we call them on CCWSafe.com four elements of self-defense. Let's talk about those elements and you pointed out that these aren't legal elements. These aren't necessarily going to be talked about in a court of law, but in all the cases that we looked at these are things that are present and have a huge bearing on the decisions made and how they're interpreted. They're common to every self-defense case.
Don West: Yes, that's exactly right, and they also can impact which laws might apply in a given situation and presumptions in favor of the use of deadly force.
Shawn Vincent: Sure, so these four elements are location, escalation, reasonable fear, and post-incident actions. So let's start with location because these nine cases that we've explored, we've broke those up into three different groups. The first three that you and I looked at were home invasion cases, or cases where someone in their home confronted an intruder and shot and faced a challenge to their self-defense claim. The second three cases that we looked at were cases that happen in or around cars. A lot of them were considered "road rage" cases. Then we looked at three cases that took place not in your car, not in your home, but someplace in the public where the shooter had a legal right to be and that's where we are here with Gyrell Lee. He had every right to be in the street a couple doors down from his cousin's house on New Year's Eve.
Don West: So legally, we're not claiming he was trespassing, not claiming he was committing any other crime. He was out there enjoying the rights as anyone else would have the right to in that particular situation. However, he perhaps doesn't have the same kind of protections that you might have if you are in your home and confronted with someone who intends violence or even to some degree in your car when confronted by someone who intends you harm. This case we're talking about now the location is particularly significant because it's not in any of those areas that might be extra protected in terms of the law favoring the person who uses self-defense force.
Don West: In this case, everybody's got about the same standing. No one's defending their house, no one is in their car being attacked. These are guys out on the street each with the same right to be there.
Shawn Vincent: Yeah, I want to elaborate on that because when we look at the Castle doctrine, it's pretty much understood in your heart and in the law that when you're in your home, there's no place that you have more of a right to be. There's no place where you'd be more justified to protect yourself with deadly force given the right scenarios right?
Don West: Yes, and in fact, in virtually every state that I know of, you have extra protections if you're in your home where your actions are presumed lawful. Where the person who invades your home is presumed to intend you harm. So the imminence is assumed or presumed. The fear of great bodily harm or death is somewhat presumed and then if your actions are reasonable in that context, you enjoy a very high probability of your conduct being excused because of the location coupled with, of course, your conduct significantly very, very important -- but you have in a sense a leg up when you are trying to explain a self-defense scenario in your home.
Shawn Vincent: Sure.
Don West: The idea that your home is your castle. It's the safest place you can be and that's why the law never requires you to flee your home prior to defending yourself.
Shawn Vincent: Sure. Then when we looked at the Ronald Gasser case out of Louisiana. Rob Gasser was in a road rage incident with what turned out to be Joe McKnight, a famous football player. We know that in Louisiana, they specifically mention the car in their laws that if someone crosses that threshold of an open window or the door of the car uninvited, you're specifically on more solid ground than otherwise. Similar to the Castle doctrine, it applies to the car. It's not quite as strong, but it's called out specifically by the law.
Don West: Yeah there's typically a stature in place that extends some of the protections you would have in your home to the workplace and the car.
Shawn Vincent: Right. So you have more of a right to be in your car than somebody else. Especially someone uninvited, and I think that's the idea of this “more of a right to be there” because, like what you're saying, once they've gone out onto a neighborhood street, nobody has more of a right to be there than anyone else. Now in North Carolina, they've got their version of the stand your ground law there which takes away any duty to retreat, and that's where Gyrell Lee stands. So he's legally protected to not have to run away from this fight, but unlike being in his home or in his car he doesn't have more of a right to be there than Epps did. Which isn't a legal standard, but this is something that juries are going to look at. This is something investigators will look at right?
Don West: I agree that they will, and ultimately the jury -- after the case has been filtered through the eyes of law enforcement and then the prosecutor's office and finally gets to the jury -- they're going to look at whether in the total circumstances the accused’s behavior was reasonable, and I think all of that factors in. In fact, I think that that's a point of this case in fact is the reasonableness of what Gyrell Lee did in the context of the prosecutor's argument. Let me just take a second to emphasize and just to reinforce the idea that under common law, the Castle doctrine typically protects people in their home from having to flee. All stand your ground does is simply extend that notion to other places and it's typically any place that you have the right to be. It doesn't change the other elements of self-defense. It doesn't lower the imminence of the threat or serious bodily harm or death. It doesn't change the proportionality of force that's used. All it does is not require you to flee or to retreat prior to using force.
Don West: There still are a number of states in the country that require a duty to retreat prior to using deadly force. I think the stand your ground states, though, now are in excess of half where you if otherwise faced with an imminent threat of great bodily harm or death under circumstances where you'd have the right to use deadly force in response to that threat, you do not have to look for and take any opportunity to escape first. Of course legally, that means there's one less thing for the accused to worry about in trial that a jury could find that even though they had the right to defend themselves, they missed an opportunity to flee and therefore, nonetheless, they're still guilty of some degree of murder.
Shawn Vincent: Well sure, and that makes this a good time to talk about this element of this case and that's that the prosecutor did suggest to the jury that a reasonable person in Lee's shoes would have run away from the situation and perhaps should have. So when this goes on appeal, add to it that the agreed upon jury instruction that the judge gave to the jury left out that part of that stand your ground law.
Don West: Yes it's somewhat complicated and I won't try to explain some of the nuances of the law because the effect of these arguments are so clear and the impact on the jury can be so profound that when the trial judge failed to instruct the jury on North Carolina's existing stand your ground law meaning no duty to retreat, the prosecutor was able, through the arguments, to in effect exploit that. I don't know that she was accused of doing anything unethically, but she did clearly emphasize under this umbrella of reasonableness that it was unreasonable for Lee to use deadly force in that scenario instead of trying to get away. When the jury was not instructed by the judge that in fact Lee had no duty to retreat, then the prosecutor was able not just to make that point, but there was no clear rebuttal by the law. The judge is compelled to instruct the jury on the appropriate law for the case. By failing to directly instruct the jury that there was no duty to retreat, then I think ultimately, and we'll talk about the procedural sequence, ultimately it was concluded that Lee did not get a fair trial.
Shawn Vincent: Sure, the Supreme Court says that-
Don West: The case was reversed.
Shawn Vincent: The Supreme Court says that it's very likely he could have gotten a different result from the trial.
Don West: Yeah, the standard's going to be a reasonable possibility of a different outcome, and that's another way of saying that there was the risk of prejudice. They weren't saying that he would've necessarily been acquitted, and I don't think anywhere would you find them expressing an opinion that they didn't think that Gyrell Lee could be guilty of this crime, but they basically said the jury wasn't instructed properly and without the proper instructions, there's a reasonable possibility that the outcome would have been different had they been properly instructed.
Shawn Vincent: So we talked about location. Let's talk about escalation, and this is the part where I think very often we have some of the strongest lessons for concealed carriers because I like to talk about when the moment comes, and it's a life or death decision that you have to make in a split second, nobody's going to have the time to go through all these podcasts that we've made and all the lessons that we've written about and check off all the boxes to know if they're justified or not. Right? There's usually a decision before that decision to pull the trigger where you do have the time to really think about the situation that you're in or you're getting yourself into and that is covered by this escalation, de-escalation umbrella.
Shawn Vincent: I'm going to say that the Gyrell Lee case, that the decision before the decision was when based with this escalating threat from Epps. Instead of saying, “Hey let's take this party inside,” or “Hey, you know what, let's go over to my house and do this,” He decided instead to stay outside -- which he had every right to do of course -- and go get his gun which, again, he had every right to do, but once he got that gun and made that choice to stay outside where we knew that another confrontation with Epps was likely, he opened the door to the armed confrontation that followed.
Don West: Well, you know Shawn, that's an excellent point, and I made the comment early at the beginning of this podcast how the legal decisions and the legal consequences meaning guilty to not guilty in a self-defense incident are often just a matter of a few seconds, and that's what the court said in this case. That their assessment of whether Lee acted legally, or the jury's assessment, is really just a few seconds -- but that doesn't mean that the context isn't important and critically important for those that have taken on this awesome responsibility of carrying a gun that there aren't clear moments and markers along the way where something could have derailed what looked like a train to disaster. Clear heads, calmer heads prevail, and pretty soon something happens that changes the entire course of this. A lot of those decisions, including the ones that Lee made or didn't make and the others, would not have been doing something illegal or legal. It's really just a question of judgment and opportunity and seeing the big picture.
Don West: We've already talked about lots of cases where there were clear moments where something could've changed that would have had a dramatic impact on the outcome. I’m thinking of the Michael Dunn case in Jacksonville. The so-called loud music case.
Shawn Vincent: Right.
Don West: Even the George Zimmerman, Trayvon Martin thing. There’s been volumes and hours of things written and talked about in terms of what led up to the incident and frankly there were lots of opportunities for both George Zimmerman and Trayvon Martin to change the course of what seemed to be inevitable, frankly. The actual legal analysis of whether George Zimmerman was guilty of murder is really distilled to just 40 or 50 seconds -- or even less. Probably as little as five or 10 seconds depending on the evidence that you focus on, and yet that case has been known for all of these bad decisions that somehow got translated into illegal conduct, and virtually none of the stuff was illegal. It was just some bad decision making by both individuals along the way.
Shawn Vincent: So let's talk about that because I think that is an important distinction. Was it legal for Lee to be hanging out at his cousin's house on New Year's Eve? Yes.
Don West: Of course, yeah.
Shawn Vincent: Outside of his home, his cousin's home, where he was a welcome relative, he certainly had a great right to be there. Was it illegal for Lee to get his gun? No. He's a licensed concealed carrier. He was doing it legally and properly. Was it illegal for him to go down the street and meet with Epps who had been tormenting them all night? No. I mean it's a public street. It's his neighborhood. It's his cousin's neighborhood anyway. He absolutely had a right to be there, but I guess what I want listeners to think about is, we've seen so many of these situations where people well within their rights to behave the way they did -- it just wasn't necessarily responsible behavior for someone who carried in his pocket, essentially, the ultimate conflict ender. The power of life and death over this person that they're having a conflict with.
Don West: Well there's a level of maturity and, frankly, a level of humility that enters into that decision. We often say you have to be the calmest guy in the room. You have to be the one that's willing to take the guff. You have to be the one that's willing to be insulted and walk away from it rather than resorting to the gun, and I think this is a situation where it sounds like there were some prideful moments and some macho stuff going on where there were opportunities for Walker and Epps to discontinue what they were doing. I mean Walker and Epps were arguing and ultimately Epps shot and killed him. That stinks. That sucks for Walker, and ultimately Epps, because that's what ultimately prompted Lee to get his gun out and prepared to shoot Epps. He just missed his chance when Epps was going after his cousin and then when he turned the gun on him. I think everyone would agree at that point he had no choice. He was facing a gun within a few feet, and he never had an opportunity that I can see in these facts to get away at that point.
Don West: Now he had an opportunity maybe earlier if he chose to, but at the moment when he was facing the gun there was no response I could see other than him using his own gun to defend himself. Do you see it any different?
Shawn Vincent: You've walked us right into this third element which is reasonable fear. You told me many times, legally, the justification for deadly force requires that you are reasonably fear an imminent threat of death or great bodily injury. Is that right?
Don West: Yes.
Shawn Vincent: So here you see a guy who's just witnessed his cousin being shot down in the street. Epps the man who shot him, is still armed. He turns the gun on him. That's a “right now” decision, right? That's imminent if I've ever heard of imminent before.
Don West: Well, if somebody has a gun and you already know they're willing to fire it, and have fired it, you know the guns works, and you know that if they're facing you and decide to pull that trigger that it's over for you: that is the textbook definition of deadly force. It is clearly imminent at that point and yes, that's a textbook example of when you would have the right to use lethal force in response.
Shawn Vincent: Sure, and I think even because duty to retreat came up here in this case because the prosecutor suggested that a reasonable person would have retreated, and because they're in a stand your ground state where he does not have the duty to retreat. I mean even if he wasn't in a stand your ground state, well how's he going to get away here? I mean, he's in the middle of the street. Is he going to turn his back and run on this guy and leave himself exposed to the fire? I don't see how you get out of that.
Don West: That's a good point as a side issue. Where there is a legal duty to retreat, retreat is only required if it can be done safely without increasing the risk to yourself or others. So even under those facts, if you start telescoping it to just those seconds when Epps was turning to Lee, and Lee had that moment and that moment only to decide whether to defend himself or not -- there was no opportunity to retreat. He couldn't have physically done it, and therefore, even in a duty to retreat jurisdiction, he would not have been required to do that because it clearly would've increased his danger had he turned his back to run. He would've been even more of a target, I think.
Shawn Vincent: Sure. So before we get to these post-incident actions, I want to talk about this concept that we discuss every once in a while called “every shot counts.” We know that Lee fired eight rounds at Epps, and the prosecutor presented some evidence at trial -- and this is the evidence that you mentioned earlier in the podcast -- that the jury asked to see during deliberations. This evidence was a divot in the pavement under Epps's body. The suggestion is that Lee fired a round, at least one round into Epps's prone body that went through his body and made a mark on the pavement underneath. The suggestion being that he was trying to kill him. He wasn't just trying to stop a threat. How do you interpret that?
Don West: There's a couple of ways to look at that and analyze it. If you take it simply on that basis that Epps was on the ground and you assume from the way the prosecutor argued this, that she was claiming that not only was he on the ground, but he was no longer a threat. Either he was incapable of firing the gun or he'd dropped the gun. The inference is that he's already on the pavement, no longer a threat and that Lee fired at least one more shot after Epps was no longer a threat. So therefore, there is no legal claim that that last shot could have been in self-defense. That's what pretty quickly morphs a lawful self-defense shooting into some sort of criminal homicide. That's the Goldilocks idea. You can't shoot too soon, you can't shoot too late. It has to be just right.
Shawn Vincent: It has to be just right.
Don West: If the prosecutor was arguing effectively that he shot him more times and later than he could justify because of the threat, then he's now committed a criminal act which would, if you think about it, how horrible is that to successfully defend yourself against a clear lethal threat only to convert into a murder because you are angry or revengeful or what have you? That's one of those things where it's all there except for that little bit too much. I was hesitant to offer too much of an explanation there because we're assuming that's what the prosecutor argued, and I think that's what she did, and the jury may have really been impacted by that since they wanted to see the evidence again on that divot, but that would be a ripe opportunity I would think for the defense to offer some expert analysis. There'd be all sorts of aspects of that which perhaps there could be some light shed by experts. Contrary to what most people see on TV and in the movies, when someone is shot, they don't fly back two or three feet. They don't immediately hit the ground.
Shawn Vincent: They don't fall off a church steeple. Yeah.
Don West: Yeah, yeah. So you've got someone unless they are hit, not to be too graphic, but unless they are hit in the head and die instantly and are incapable of movement, someone who's shot in the torso or anywhere other than the head is likely to be able to move -- and sometimes move a lot unti --
Shawn Vincent: Well, case and point here, Walker was shot multiple times and he was able to run away and hide behind a house where he died.
Don West: Yes. So that's why an expert might come in and say look because of the nature of this guy's injuries, he was still able to fully function for 10 or 15 seconds. Which of course is an eternity if you're facing somebody with a gun. So it was a nice attempt by the prosecutor to use that evidence to try to climb into Lee's head to claim that here's where the malicious intent, and here's where the criminal act took place, but this thing happens so fast you just don't know. That's a shame isn't it if that was exploited, but it wasn't in fact true.
Shawn Vincent: Rebutted. Yeah.
Don West: Yeah. Of course any experienced gun operator, certainly law enforcement and military know that these are very fluid and dynamic situations where you don't see the immediate effect of shot one as you're preparing to fire shot two. So the idea that there were eight shots sounds like a lot, and maybe there's a plausible argument that it was too many, but not necessarily. Especially if they were all clustered together and Epps still seemed to be capable and ready to fire himself.
Shawn Vincent: We talked about the choice before the choice, and so, shy of Lee going to get his gun, which he had every right to do legally, the biggest mistake he makes here is after the shooting. We explained earlier that everyone fled the scene including Lee. He went and hid his gun under a garbage can. He failed to report it to the authorities and we know that the cops were looking at a double homicide when they picked him up the next day. You quoted a legal term about how that could be interpreted, that fact.
Don West: Oh, yeah. Earlier I said consciousness of guilt.
Shawn Vincent: Consciousness of guilt. So essentially suggesting that he's acting not in the way somebody who used justifiable self-defense would act. He's acting like somebody who committed a murder.
Don West: That's the inference to be drawn by somebody who flees, fails to remain on the scene, fails to report, hides evidence. I'm not so sure that fleeing isn't easier to explain than hiding the gun. I don't have any more facts than you do about where he got the gun, but we do know he was legally allowed to have it, so I'm going to assume it was a legal gun for him. It sounds like he simply panicked and, as a result of that, made some pretty bad decisions. Decisions, again, that were able to be exploited by the prosecutor to suggest that this wasn't self-defense. This was in fact a criminal act. So we've already talked about a couple of things that the prosecutor had to try to convert what seems to be a lawful self-defense shooting into a criminal act. We have this notion of the divot under the body that would suggest too many shots, even if it was otherwise lawful.
Don West: Then you've got the fleeing and the hiding of the evidence to suggest that, since the ultimate path of a self-defense case is to get between the ears and into the head of the person who's on trial, since the measure of the jury is whether the person acted reasonably, the jury has to figure out what the person was thinking and why and was it reasonable to conclude that they were facing this imminent threat and had to respond accordingly. So anything that you do that disrupts that or that causes the reasonableness of your conduct to be questioned is a clear disadvantage.
Shawn Vincent: Sure and you were talking earlier about when the Supreme Court in North Carolina looked at this, they were looking at just those few seconds where he pulled the trigger right?
Don West: That's what they looked at, exactly.
Shawn Vincent: They're not looking at what happened before. They're not looking at what happened after. The suggestion is that maybe they get a different result if they go to trial and say give the proper jury instruction on here. The way I'm looking at this, if we look at these four elements, location: he had the right to be there. The law in North Carolina was on his side regarding him not having the duty to retreat. The Supreme Court reiterated that in their decision. We go to escalation. Here he made a number of mistakes. He allowed this repeated verbal confrontation to escalate to violence, and he armed himself for it when he could've made other decisions that would've eliminated the potential for this violent confrontation.
Don West: Yeah, let's talk about the escalation just a little bit more to put it in context. That's not necessarily doing something that was illegal. Escalation isn't the same thing as provocation or being the initial aggressor which can have significant effects on one's right to use self-defense force.
Shawn Vincent: Sure.
Don West: We're talking about more tactics, common sense, missing opportunities to avoid the whole thing.
Shawn Vincent: Right, and what I want concealed carriers to take away from a story like this is to take those opportunities to de-escalate, to avoid a confrontation when they come. If you have that call or that thought that I need to go get my gun, that's the moment to stop and think about how important is it to defend my right to party outside of my cousin's house on New Year's Eve? Is that worth getting into a gunfight over?
Don West: Shawn, I don't know since we weren't there, whether there was a clear opportunity for Lee to get Walker away as well. It sounded like it. It sounded like there were lots of times when the whole confrontation could've been avoided by Lee getting Walker and saying let's get away from this guy, he's crazy or he just wants to fight, or anything that would have initially separated Walker and Epps would then have prevented Walker's death and ultimately would have prevented Lee from getting into it and having to shoot and kill Epps to save himself. So this thing went sour pretty early when you start looking at Walker and Epps being what initiated ultimately the confrontation between Epps and Lee.
Shawn Vincent: I guess what I'm leading up to here, Don, is if we take that snapshot of just that reasonable fear right after the cousin's shot and the gun's turned on him -- that few seconds that the Supreme Court that's all they're looking at -- that's real clear-cut, and without making a decision about being on his side, it feels like they're on his side here. This case is almost an example of how can you take such a clear-cut justifiable use of force and ruin it with your behavior before and after the shooting.
Don West: Well, thanks Shawn. It's a pleasure talking with you. I enjoy just hearing how you think sometimes. We often work with a fairly sketchy outline. We have a lot of filling in the blanks to do, and I think that the two of us do a pretty good job at distilling important issues, not just for these cases, but that turn out to be pretty good thinking points for our listeners and those members and future members of CCW Safe that have decided to be responsible gun owners and responsible in carrying their firearm, and can -- by visualizing and listening and learning, understanding the legal boundaries -- can not only be prepared to save their life and their loved ones, but be prepared to avoid the nightmare situation that so many wind up in that we feature in our ongoing podcast, In Self-Defense. Thanks Shawn, I'm Don West, National Trial Counsel for CCW Safe. Shawn, thanks as always and I'll talk to you next time.
Shawn Vincent: I'll talk to you soon.
Don West defended George Zimmerman in the high-profile 2013 murder trial. Bob O’Connor led the Sanford Police department’s investigation into the shooting of Trayvon Martin. The two talk about their experience working on a self-defense case while under the scrutiny of the national media and about the merits of “stand-your-ground.”
Time: 1:06:00
This week Don and Shawn talk about the thin line that can sometimes come between self-defense and murder.
Time: 1:03:00
This week Stan and Mike talk with Marissa Alexander, and discuss her self defense case that originated in Jacksonville, FL.
On August 1st, 2010, Marissa fired a warning shot after her husband attacked her and treated to kill her. She was just days out of the hospital from having her daughter, who was born premature. In May 2012, Marissa Alexander was prosecuted for aggravated assault with a lethal weapon and received a mandatory minimum sentence of 20 years in prison. At the time, warning shots were not included in the Stand Your Ground laws in Florida.
Alexander was released on January 27, 2015, under a plea deal that capped her sentence to the three years she had already served.
Warning shots were later added to the Stand Your Ground Laws in the state, and that change, signed into law in June of 2014 by Gov. Rick Scott, was partly inspired by the case of Marissa Alexander.
Let us know your comments! Full transcription available at ccwsafe.com
In this podcast, Stan and Mike talk with Andrew Branca about several topics, including a discussion on the recent incident in Missouri, where Dmitriy N. Andreychenko, 20, was charged with making a terrorist threat. He had entered a Wal Mart carrying a tactical rifle, a handgun and 100 rounds of ammunition. Andreychenko was charged with making a terrorist threat in the second-degree.
They also talk about the case of a man who was prosecuted for murder for the third time and the cost associated with such a case, and a new defense of property course from Andrew Branca with a special offer for CCW Safe members.
Time: 47:35
In this podcast, Stan and Mike talk with Larry Vickers about what he has on the horizon. They talk about Larry becoming the executive director of FTA, which is the Firearms Trainers Association, and also about a new Larry Vickers podcast. They talk about his coffee table book series and what is coming in the future.
Time 53:13
In this episode, Stan and Mike talk with Dr. Alexis Artwohl, an internationally recognized behavioral science consultant to law enforcement as a trainer, researcher, and co-author of Deadly Force Encounters. During her 16 years as a private practice clinical and police psychologist, she provided consultation to multiple agencies throughout the Pacific Northwest as well as traumatic incident debriefings and psychotherapy to numerous public safety personnel and their family members.
The three talk about attention, the illusion of attention, and how vision is interpreted in the brain, rather than the eyes. This is why multiple people can see the same event, but perceive it and report it totally differently.
Time: 59:15
Don West and Shawn Vincent explore three high-profile self-defense cases: the text-book home defense by Zach Peters; the surprise dismissal of murder charges against Joshua Walker; and updates in the Michael Drejka parkinglot shooting case.
In this podcast episode, Stan and Mike talk with self defense expert and attorney, Andrew Branca. Andrew is the founder of lawofselfdefense.com and provides excellent content for those who carry for protection.
The three talk about the 5 elements of self defense- Innocence, Imminence, Proportionality, Avoidance, and Reasonableness, and the importance of making sure that each element is met if you are ever forced to defend yourself. They also talk about removing the ambiguity of situations in order to avoid a possible threat, and if you can't avoid, to be able to articulate your case.
This is a great podcast for anyone who carries concealed.
Time: 52:41
In this episode, Stan and Mike talk with long time friend and mentor, Blake Webster. Blake is a police officer and is the longest standing member of the Oklahoma City Police Tactical Unit. Blake talks about active shooter training, the history of it, and where it is today, and touches on some things to think about as an armed citizen.
Blake's education and training include:
- Oklahoma State University, 2002 (45 hours) ----- Criminal Justice/Police Administration
- Rose State College, 1995 (13 hours) --------------- Undergraduate Studies
- Oklahoma Baptist University, 1985 (15 hours) ---Undergraduate Studies
- Basic Tactical Operator – October 1986
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Advanced Tactical Operator – October 1986
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Emergency Vehicle Operations Instructor – April 1987
- Certified by the Def Tech Corporation as Impact Munitions/Noise Flash Diversionary Devices/Chemical Munitions Instructor – October 1992
- Instructor Development – November 1992
- Custody Control Instructor – February 1995
- Sub Machine Gun Operator – May 1995
- NARC ASSAULT certified by Oklahoma Bureau of Narcotics and Dangerous Drugs – May 1997
- Rappel Master by Oklahoma Bureau of Narcotics and Dangerous Drugs – June 1997
- Firearms Instructor – October 1997
- Advanced Shotgun Instructor – October 1997
- Booby Traps and Tracking by Oklahoma Bureau of Narcotics and Dangerous Drugs – May 1999
- FBI instructor in Chemical Agents – April 2000
- TASER Maser Instructor – January 2001
- Cooper Institute “Physical Fitness Specialist – Law Enforcement” – April 2002
- International Association of Chiefs of Police as a Less Lethal Instructor – June 2004
- Auto Rifle and Carbine operator – February 2005
- Cooper Institute in “Biomechanics of Resistance Training” – October 2006
- TASER Armorer in the TASER M26 and X26 – August 2007
- Institute for the Prevention of In-Custody Deaths Instructor in Identification, Prevention, Management and Investigation of Sudden and In-Custody Deaths – August 2007
- Patrol Rifle Instructor – September 2008
- C.L.E.E.T Patrol Rifle Instructor – September 2008
- Lethality Assessment Instructor – January 2009
- National Tactical Officers Association Resolution of Barricaded Suspects – August 2009
- Train the Trainer Advanced Law Enforcement Rapid Response Training – July 2011
- Night Vision/Thermal Imagery/Laser Illumination operator – February 2013
- Simunitions Instructor School – August 2014
- National Tactical Officers Association Advanced SWAT School, 2015
In this podcast, Stan continues to interview Mike about his shooting. Mike was involved in a shooting as a police officer, and was later sued in federal court, which was the foundation of the creation of CCW Safe. The lawsuit was kicked out at summary judgement, but that experience is what later led to the creation of CCW Safe.
Mike talks about some key learning points that came out of his shooting. One was training, which we all fall back on during critical stress incidents. It's imperative to continue training in various ways if you are going to carry concealed. Another was knowing what to expect in terms of the physiological effects that your body and mind may encounter. Some of these effects may be tunnel vision, auditory exclusion, intense second guessing, temporary memory loss, and temporary loss of motor skills.
This is a great podcast that can help prepare you if you are ever put into a situation where you have to defend yourself with deadly force.
This week, Stan and Mike have a late night conversation about the startup of CCW Safe, and talk in depth about Mike's shooting he experienced as a police officer. Stan interviews Mike about his training and unit assignment at the time of his shooting.
Mike's shooting experience was the reason they formed CCW Safe, to protect retired and former police officers, military, and concealed carriers.
This week, Stan and Mike talk with Gary Eastridge, Critical Incident Coordinator for CCW Safe, about the myth of murder insurance. There is no such thing as murder insurance. No company that offers coverage for concealed carriers will cover murder. The three talk about Gary's article on the myth, and explore some other issues with this ongoing battle against the NRA.
This week Stan, Mike and Justin talk discuss the new CCW Safe office mascot, rolling out a Rewards Program for members along with a discussion about the training industry, some trainers putting out interesting information, the changes we have seen over the last decade and where it is going in the future.
Full transcription coming soon!
SHOW NOTES:
John Murphy FPF Training: https://www.fpftraining.com/
FPF Criminal Assault Pre-Incident Indicators: https://www.youtube.com/watch?v=XPbCw9pV90c&list=PLhZ8SRFuOUJY_Cp_gtN7G6R1ZBK_mQyLj&index=5&t=6s
Ed Calderon: http://edsmanifesto.com/
Ed Calderon on Joe Rogan Podcast: https://www.youtube.com/watch?v=llhb2ymtsw8
Mike Green: https://www.green-ops.com/
Time: 53:59
This week Stan and Mike interview Phillip Naman, host of the Firing Line Radio Show on AM 590 The Answer, out of San Bernardino, California. Phil talks about his background, how he was first introduced to firearms, and the background of the Firing Line Radio show. The three talk mainly about California and some of the things that are going on there, and how those things can affect the rest of the United States.
Full transcription coming soon!
Time: 52:31
This week Stan and Mike talk with Brad Shepherd, co-founder and CEO of Warrior's Rest. Brad served over 27 years with the Oklahoma Highway Patrol before happily retiring and starting Warrior's Rest.
The three talk about what made them go into law enforcement in the first place, and talk about some of the things that they experienced through their careers, some of which had long lasting impacts on them.
They also talk about a very powerful video that was produced on Warrior's Rest recently about Ed Smith, a retired police officer from Modesto, CA who has a great story to tell. He is a 29 year veteran from 3 law enforcement agencies in California. The video can be seen here
Warrior's Rest Foundation is a resource for law enforcement personnel, departments and communities across the U.S.
Founders Brad Shepherd and Brett Key bring nearly 50 years of experience in law enforcement. Other members of our core team have decades of experience in law enforcement and crisis intervention. In the last 10 years, this team has responded to critical incidents, including line of duty death and natural disasters to perform mental health counseling and peer support crisis intervention. They also have assisted with development of peer support teams to help law enforcement personnel prepare for and respond to the effects of critical incidents.
Warrior's Rest Foundation works in partnership with other organizations to form a comprehensive support network.
Mission:
Working together we help to build resiliency with law enforcement, their partners, and their families to foster healthy professional and personal lives.
Values:
- Integrity--We demonstrate a commitment to honesty and strong moral principles in all that we say and do.
- Trust--We work to engender trust among law enforcement teams--that firm belief in the reliability, truth, ability, or strength of others.
- Courage--We help build the resilience required to persevere and withstand danger, fear, or difficulty.
A percentage of every HR218 CCW Safe membership will be donated to Warrior's Rest over 2019.
In this podcast, Stan and Mike talk with longtime friend, Maggie Mordaunt, otherwise known as CCW Maggie. Maggie is a firearms instructor in Las Vegas, Nevada, and the three talk about women in firearms, and talk about some topics surrounding that. Women make up a large part of the firearms industry from new permit applications, to gun purchases, to instructors and corporate leaders in the firearms industry.
Full transaction online at ccwsafe.com/blog
Time: 1:00:39
In this episode, Stan and Mike talk with firearms instructor and combat strength training founder Pat McNamara. If you don't follow Mac online, then find him @tmacsinc on Instagram, or check him out on YouTube under Pat Mac. This is a great podcast, and the three talk about his book, the Sentinel, and more!
Patrick McNamara spent 22 years in the United States Army in a myriad of special operations units. When he worked in the premier special missions unit, he became an impeccable marksman, shooting with accurate, lethal results and tactical effectiveness.
McNamara has trained tactical applications of shooting to people of all levels of marksmanship, from varsity level soldiers, and police officers who work the streets to civilians with little to no time behind the trigger. His military experience quickly taught him that there is more to tactical marksmanship than merely squeezing the trigger. Utilizing his years of experience, McNamara developed a training methodology that is safe, effective, and combat relevant and encourages a continuous thought process. This methodology teaches how to maintain safety at all times and choose targets that force accountability, as well as provides courses covering several categories, including individual, collective, online, and standards. While serving as his Unit's Marksmanship NCO, he developed his own marksmanship club with NRA, CMP, and USPSA affiliations. Mac ran monthly IPSC matches and ran semi annual military marksmanship championships to encourage marksmanship fundamentals and competitiveness throughout the Army.
