CCW Safe

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.

In Self Defense - Episode 44: Professional Adversaries

 

Don West defended George Zimmerman in the high-profile 2013 murder trial. Bob O’Connor led the Sanford Police department’s investigation into the shooting of Trayvon Martin. The two talk about their experience working on a self-defense case while under the scrutiny of the national media and about the merits of “stand-your-ground.”

Time: 1:06:00

 

In Self Defense - Episode 43: The Thin Line Between Self-Defense and Murder

 

This week Don and Shawn talk about the thin line that can sometimes come between self-defense and murder. 

 

Time: 1:03:00

CCW Safe Podcast- Episode 46: The Warning Shot feat. Marissa Alexander

This week Stan and Mike talk with Marissa Alexander, and discuss her self defense case that originated in Jacksonville, FL.   

On August 1st, 2010, Marissa fired a warning shot after her husband attacked her and treated to kill her. She was just days out of the hospital from having her daughter, who was born premature.  In May 2012, Marissa Alexander was prosecuted for aggravated assault with a lethal weapon and received a mandatory minimum sentence of 20 years in prison. At the time, warning shots were not included in the Stand Your Ground laws in Florida. 

Alexander was released on January 27, 2015, under a plea deal that capped her sentence to the three years she had already served.  

Warning shots were later added to the Stand Your Ground Laws in the state, and that change, signed into law in June of 2014 by Gov. Rick Scott, was partly inspired by the case of Marissa Alexander. 

Let us know your comments! Full transcription available at ccwsafe.com 

CCW Safe Podcast- Episode 45: Testing The Limits feat. Andrew Branca

In this podcast, Stan and Mike talk with Andrew Branca about several topics, including a discussion on the recent incident in Missouri, where Dmitriy N. Andreychenko, 20, was charged with making a terrorist threat. He had entered a Wal Mart carrying a tactical rifle, a handgun and 100 rounds of ammunition. Andreychenko was charged with making a terrorist threat in the second-degree.

They also talk about the case of a man who was prosecuted for murder for the third time and the cost associated with such a case, and a new defense of property course from Andrew Branca with a special offer for CCW Safe members.

Time: 47:35

Inside CCW Safe Podcast- Episode 44: Industry News feat. Larry Vickers

In this podcast, Stan and Mike talk with Larry Vickers about what he has on the horizon.  They talk about Larry becoming the executive director of FTA, which is the Firearms Trainers Association, and also about a new Larry Vickers podcast. They talk about his coffee table book series and what is coming in the future. 

 

Time 53:13

Inside CCW Safe Podcast- Episode 43: Vision and Perception feat. Dr. Alexis Artwohl

In this episode, Stan and Mike talk with Dr. Alexis Artwohl, an internationally recognized behavioral science consultant to law enforcement as a trainer, researcher, and co-author of Deadly Force Encounters.  During her 16 years as a private practice clinical and police psychologist, she provided consultation to multiple agencies throughout the Pacific Northwest as well as traumatic incident debriefings and psychotherapy to numerous public safety personnel and their family members.

The three talk about attention, the illusion of attention, and how vision is interpreted in the brain, rather than the eyes.  This is why multiple people can see the same event, but perceive it and report it totally differently.  

Time: 59:15

In Self Defense - Episode 42: Zach Peters, Joshua Walker, Michael Drejka

Don West and Shawn Vincent explore three high-profile self-defense cases: the text-book home defense by Zach Peters; the surprise dismissal of  murder charges against Joshua Walker; and updates in the Michael Drejka parkinglot shooting case.  

Inside CCW Safe Podcast- Episode 42: Check The 5 Boxes feat Andrew Branca

In this podcast episode, Stan and Mike talk with self defense expert and attorney, Andrew Branca.  Andrew is the founder of lawofselfdefense.com and provides excellent content for those who carry for protection.  

The three talk about the 5 elements of self defense- Innocence, Imminence, Proportionality, Avoidance, and Reasonableness, and the importance of making sure that each element is met if you are ever forced to defend yourself.  They also talk about removing the ambiguity of situations in order to avoid a possible threat, and if you can't avoid, to be able to articulate your case.  

This is a great podcast for anyone who carries concealed.  

Time: 52:41