In Self Defense - Episode 46: Enemy at the Gates - a podcast by Mike Darter

 

 

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.

Further episodes of CCW Safe

Further podcasts by Mike Darter

Website of Mike Darter