CCW Safe

In Self Defense - Episode 51: The Warning Shot Case: Part I

 

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.

CCW Safe Podcast- Episode 49: Interview with Criminal Defense Attorney Andrea Luem

 

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. 

In Self Defense - Episode 50: The Anatomy of a Self-Defense Trial Part 2

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.

In Self Defense - Episode 49: The Anatomy of a Self-Defense Trial

 

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.

In Self Defense - Episode 47: The Legal Risk of Drawing Your Firearm

 

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.

CCW Safe Podcast- Episode 48: Road Rage with Steve Moses

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. 

In Self Defense - Episode 47: The Keith Byrne Road-Rage Tragedy

 

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 Podcast- Episode 47: The Anatomy of a Critical Incident Response

 

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.

In Self Defense - Episode 46: Enemy at the Gates

 

 

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.

In Self Defense - Episode 45: The Gyrell Lee Case

 

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.