In Self Defense - Episode 47: The Keith Byrne Road-Rage Tragedy - a podcast by Mike Darter

 

Don West and Shawn Vincent explore a tragic road-rage case that resulted in the unnecessary deaths of both the defender and the aggressor. The case illustrates how, for concealed carriers, road-rage is a no-win scenario.

 

TRANSCRIPT: 

Shawn Vincent: Hey there, Don. How's it going?

Don West: Great, Shawn. Good to see you again.

Shawn Vincent: It's good to see you. So often, we record these things when we're in our own nomadic offices. What do we call this thing that we're doing, where we can work out of our home sometimes, or we work out of a hotel room, we work out our rental car?

Don West: Isn't technology remarkable in that sense for us who need to travel as part of the way we make a living, have the luxury of traveling as well so that when we're not traveling for work, but otherwise enjoying life, we can still do the things that are important from a professional standpoint, we can still have conversations with each other and others. We're no longer tethered to the desk.

Shawn Vincent: Tethered to the desk, which is case in point. I don't have an office that I go to every day. I work from my home. I work from a hotel. Yeah. I work where I need to work, sometimes from the back porch of my house, and the weather's good enough. But today, we're in a library in Winter Park, Florida. I have to say I'm surprised at how noisy librarians are.

Don West: We actually had to move the room.

Shawn Vincent: We moved the room here next to the employee break lounge. The librarians wouldn't shut up. They're too noisy. But here we are.

Don West: That's the beauty of it. Here we are in the same part of the country for the first time in quite a while.

Shawn Vincent: It's been  months anyway. Yeah.

Don West: We can find a local spot. We have portable equipment, and we have laptops and cell phones and lovelier microphones. Now, we have a broadcast studio.

Shawn Vincent: That's right. Even if it's a slightly echoey room. But yeah. Here's what I want to talk about with you today. You've mentioned last time we spoke that you tried your first case that involved a violent crime before a jury about 30 years ago.

Don West: Yeah. I've been thinking now probably early '80s. So we're talking probably '82, '83, in that range. I was working at the public defender's office in Seminole County, Florida, which turned out to be the same venue more than 30 years later for the George Zimmerman, Trayvon Martin trial, which is kind of the backyard for Mark O'Mara and me for such a long, long time. My first self-defense case, lethal self-defense case to a jury was a local Seminole County prosecuted case. It was domestic in nature. My client was a woman who stabbed and killed her husband in self-defense, and it goes back that long ago. There've been a number of them since. They're all unique, even though there are common threads of course and common legal issues.

Don West: Interestingly enough, in that case, there was a reversal on appeal because she was convicted of a lesser offense because of jury instructions. The court denied her the opportunity of the castle doctrine. Then on appeal, the appellate court said, no, she was in a home that she lived in. Even though they were estranged, and she was just there temporarily, it was still her house. So she had no duty to retreat, and then reversed, got a new trial, and the case resolved.

Shawn Vincent: That's really interesting. So castle doctrine doesn't have to refer to only your primary residence if it's a home where you have a right to be.

Don West: They were equal occupants.

Shawn Vincent: Equal occupants. Yeah.

Don West: That's right.

Shawn Vincent: That's interesting. You're just as protected by castle doctrine at your beach house if you're lucky enough to have one as you are in your primary residence then.

Don West: Yeah. It was interesting because one of the factual issues that led to that was that she had an opportunity to leave without re-engaging him and chose not to. The confrontation turned lethal, and she had been denied the defense basically of the castle doctrine. The jury was instructed she had a duty to retreat under the circumstances. Even though they didn't buy the prosecution argument that it was murder, she was still convicted of a lesser offense and sentenced to a prison sentence. So the case was appealed. We won on appeal, and the whole thing worked out in her favor at that point. But it was a good example of how one... We talk about so often how one-

Shawn Vincent: About the nuances.

Don West: ... little thing makes such a huge difference. Frankly, let's fast forward, how many years to the Marissa Alexander Case in Jacksonville?

Shawn Vincent: You were talking about that. It made me think of Marissa Alexander situation.

Don West: I hope we do a deep dive in that case at some point. But long story short is she was prosecuted for essentially firing a warning shot at an estranged... I don't know if they were still married, but it was an ex-relationship of sorts. She felt threatened and fired a gun, had lost, I believe, the self-defense immunity hearing, went to trial, was convicted and initially sentenced to I think 20 years in prison.

Shawn Vincent: 20 years. Three 20-year sentences to be served consecutively because there was the husband or the estranged father, some children, and two children were present. So she fires one shot, which she called a warning shot that struck nobody, went into the wall and then to the ceiling and the room next to her. Angela Corey and her crew, who we've had experience with, decided that they'd charged her with attempted murder times three.

Don West: Yeah. Not to get too far off-track, but in that case, she was convicted and sentenced to a lengthy prison term and won a reversal. I think out of all of that stuff that was so controversial and was so divisive, even within the legal community, she winds up I think getting a new trial because of a jury instruction issue.

Don West: So she comes back. She gets a redo and gets some new lawyers and some maybe new prosecutors. But in any event, there's a resolution of the case that's favorable. But she spent at least some time in prison. I believe is a convicted felon even as a result of what turned out to be negotiated outside.

Shawn Vincent: So I promise you we are going to do a deep dive into that case relatively soon. I also have some bad news for you, Don. 1982, '83 was way more than 30 years ago.

Don West: Oh, Shawn. Say it isn't so.

Shawn Vincent: So they get closer and then-

Don West: Oh my goodness. I guess you're right.

Shawn Vincent: 37, some years ago. You and I were talking one time, and he said, "A few years ago something happened." I said, "Is that an actual a few years ago, Don, or is that like the old man, 15 years ago actually, but it feels like just a few years ago?"

Don West: That does feel just like a few years ago to me. I say 30 thinking that-

Shawn Vincent: That's long enough. How could anything have happened 30 years ago that I can remember, right? I'm middle-aged now, which I'm starting to get into my head that... When I climb stairs, it becomes apparent to me that I'm middle-aged now. Or when I tell the same stories over and over again, which I'm prone to do. My kids know, I apologize. I'd probably told you this story before, and like, "Yeah, Daddy. You have a lot of stories that you tell over and over again. Mommy has one story that she tells over and over again." That's the difference that my kids have determined.

Shawn Vincent: So I bring that up only because I think you've told this story before, and some avid listeners may have heard it. But because we're getting older and it's our prerogative, we're going to tell this story again. Because today we'll be talking about a road rage case. You told me about a self-defense case, a road rage case where you're quizzing potential jurors during jury selection and got a surprising answer.

Don West: That's exactly right. I remember it clearly as well as I can remember anything, clearly.

Shawn Vincent: Was it 30 years ago?

Don West: At my advanced age. Yeah. It wasn't 30 because it was clearly... I think it was after the first one I was telling you. [inaudible 00:09:30] has long since gone beyond the public defender's office and full-time practice criminal defense laws, state and federal in private practice and the Orlando area and places beyond. But in any event, I had this jury trial, was a case that could not be resolved. My client was charged with second-degree murder, with the use of a firearm, which would have likely resulted in either a life sentence or such a long sentence that it would have effectively been the rest of his life.

Don West: We picked a jury. We're picking a jury. The overview of the case, and I don't name names in these cases because these are people that are with us right now, somewhere maybe even in this community who as a result of this event were prosecuted, were facing lengthy prison sentence. By good luck, and I'd like to think some good lawyering and some favorable facts are no longer facing that, that they were acquitted. They got to live the rest of their life, and I see no reason to bring them back into it now.

Don West: I can certainly swear to you that none of this is made up. It's part of the life experience of individuals that we know personally because we've been involved in their lives and the life of criminal defense lawyers and litigation consultants. But we were picking a jury, and obviously, one of the issues we want to know and explore with jurors is their attitude about firearms, the use of firearms, self-defense, even generally attitude about the second amendment and their views. Firearms, the use of firearms, licensed, unlicensed, possession of firearms has always been controversial.

Don West: Fortunately, in Florida the lawyers have wide berth in personally questioning the jurors during the voir dire, some people pronounce it, the jury selection process. I was kind of humming along, talking to jurors, kind of in my own mind, selecting the ones I would like to keep if I could and mentally getting ready to challenge the ones I didn't think would be good for this case. The overview of the facts that my client and some friends had gone to a nightclub. My client had a gun. He left it in the car, as he should have, to go into the club and inside the club was being hassled by somebody. I never understood exactly why someone who may have had a connection to one of the other friends, but no big deal.

Don West: Then they leave at the end of the night, go out into the parking area, and this guy shows up and starts harassing my client again. It gets a little bit physical. My client retreats to the car thinking that it's safe there, purposely trying not to engage them, and the guy's not content with letting it go and essentially attacks the car, start slamming into it, kicking the windows. Eventually, it got so frightening to my client. He felt so threatened and vulnerable. There was no place for him to go that, as he smashed the car one last time, he shot the gun, and tragically, it killed him. He was being prosecuted for second-degree murder.

Don West: From a legal standpoint, my client was the passenger in the rear seat, could not control the car. The driver of the car wound up testifying that he was stuck in traffic. Everybody was leaving at that point. There was nowhere he could go-

Shawn Vincent: Sure. Pinned in.

Don West: ... to try to go away, pinned in. Whether it was good luck again or brilliant lawyering, I don't know. But before the trial was over, the driver actually testified that he was scared, and had he been my client, he would have done the same thing.

Shawn Vincent: Sure. Out of reasonableness standard.

Don West: Yeah. So back to the jury selection issue. I'm questioning jurors about their knowledge of firearms, whether they have guns at home or in their cars and how they feel about self-defense in general. I was talking to a juror who was very pro-gun. He had a lot of firearms. He was proud of it too, was an advocate for the Second Amendment and outspoken about it. I'm initially thinking this is pretty good stuff for me. This is a guy who starts for me defending my client from the right perspective. Then I wanted to get a little bit more information about his practice and views, especially when it comes to cars.

Don West: So I'm talking with him, and I say, "Well, I know you have firearms at home, and you believe in the right to protect yourself and others. Do you have a gun in your car?" In Florida, you can have a gun in your car without a concealed carry permit if it's under certain circumstances. So people can have guns in their cars that don't otherwise not allowed to carry them concealed. I just assumed it would be true, and I said, "So when you're out in your car, do you have a gun? Do you keep it in your glove box or somewhere?" He goes, "Oh my goodness. No."

Shawn Vincent: No.

Don West: It threw me back. I couldn't believe. Here's the guy. I thought it was a softball question. I never expected “no.” So in jury selection, you actually should ask why or why not, questions you would never ask on cross-examination because you really-

Shawn Vincent: Sure. But those sorts of conversations, you really bring up other people's opinions, right?

Don West: You want to know what they think, right? Whether it's good or bad, you need to know what it is. So I say, "Why not?" He goes, "I can't trust myself. I have a quick fuse when I am in a difficult traffic situation, and somebody cuts me off or flips me off. I don't think I can keep myself from reaching for that gun and waving it around. God forbid that I should ever take it to the next step, but I purposely don't have a gun in my car because I can't trust myself not to use it when I'm so pissed as I get when I'm driving a car and some idiot cuts me off."

Shawn Vincent: Wow. That's some remarkable self-awareness, right?

Don West: It is. It is. To his credit, I guess, whatever works for you because we have encountered our own series of road rage cases, whether it's doing this kind of work or just in the cases that we've touched and in legal work to know how volatile and how deadly that stuff becomes sometimes for apparently no reason, at least no good reason.

Shawn Vincent: We see these cases where inside the course of a minute, you can go from running errands to being in a gunfight.

Don West: Yeah. People that have never known each other, never expected, never would have known each other, but for the circumstance that brings them together.

Shawn Vincent: Yeah. Now, aside from more than 30 years as a criminal defense lawyer, you're at your national trial counsel for CCW Safe?

Don West: Yes.

Shawn Vincent: What does that mean?

Don West: As national trial counsel for CCW safe, I see in some way or another, all of the cases involving our members that come to the company, all of the claims, I see them at some point. Most of the time, I take the phone call from the member who has just experienced or is currently even involved in a self-defense scenario to help identify the resources they need. I identify and retain counsel on their behalf. Oftentimes I'll go to the location where the incident took place, attend court proceedings and become involved in marshaling and monitoring and helping fund their defense. I even consult with their local counsel for strategy. In some cases I've had a lot of contact with the member through the process, discussing the case and even doing mock examinations, practice cross-examinations, this sort of trial preparation stuff that helps the members feel confident that they're able to communicate effectively with the court and with the jury.

Shawn Vincent: Sure. There's a lot of other podcasts in the CCW Safe family of podcasts. Specifically, I'm a litigation consultant. I've had the great privilege to work with a lot of great attorneys on very interesting cases. I get to help pick juries from time to time. You and I have picked juries together before. I've been able to help you in voir dire. The focus of our podcast is to talk about the legal ramifications to a use of force incident, when somebody feels they need to use their weapon in justifiable self-defense, that next fight that we talk about. They've survived the first fight with the aggression that they faced, and now, there's this potential legal challenge to whether they're justified or not. So we look at these-

Don West: We look at the broad spectrum of that from post-incident when the smoke has cleared.

Shawn Vincent: Yeah. Now, how does the law look at that?

Don West: Now, what happens? Yes. We hope by providing this kind of information and written stuff and communicating with the members even one-on-one, the first interaction with law enforcement, for example, and from that point forward, what to expect if the case is referred for prosecution? What happens if you're arrested? What to expect in court. How much it would cost, frankly, if you were funding it yourself. Fortunately, CCW Safe members don't pay anything for the cost of the legal defense should they be involved in a self-defense incident.

Shawn Vincent: So now, as you're in your role as... trying because you've had a chance to talk to a lot of members.

Don West: Yes.

Shawn Vincent: Yeah. You've told me before that when we look at these road rage incidents, those are one of the most likely scenarios where concealed carriers could find themselves in a very difficult whole situation very quickly.

Don West: I've been involved in road rage cases on behalf of CCW Safe where shots were fired, where people were prosecuted for that, again, to people that never knew each other, that somehow get involved in something that escalates to potential lethal violence. But a lot of it is the loss of emotional control that ends up from a legal standpoint in a brandishing or an assault, somebody that displays a weapon under circumstances that are as considered reckless or threatening and winds up in somebody getting arrested and being prosecuted. We see that, frankly, all too often. In my experience, it's the easiest way for people to wind up that are otherwise living normal lives in a potential lethal situation and often in a legal situation that results in being prosecuted for something.

Shawn Vincent: Right. You're trying to specifically just about brandishing a weapon. You're in your car, things have gotten heated with somebody else. Maybe you feel threatened, maybe you're just angry, and you have a gun in the dashboard or in the center console, and you pull it out and show that you have it.

Don West: Yes. Exactly. Right. We see more of those in a road rage context than under any other fact pattern that I can think of.

Shawn Vincent: Kind of just lose their minds on the road.

Don West: That's a great way of saying it. They just become crazy, don't they?

Shawn Vincent: Yeah.

Don West: Everyone listening, and I know I can give you half a dozen incidents myself that I remember that moment when something happened that took just driving down the road to the next level where I wanted to react. I did react emotionally, maybe by yelling or perhaps more gesturing. But to think how quickly that can go when two people are willing to engage, both people then feel offended and violated, and then it just climbs the ladder to the point that somebody takes-

Shawn Vincent: They introduced a gun, and to the situation, they can get violent. Yeah. I'm pretty sure the first time my children ever heard the term “douchebag” was because of some sort of traffic incident that I was involved with. So let's look at our road rage case, right? This is going to be unique in the cases that we've looked at, in that, in this case, nobody was charged because everybody involved ended up dead. A lot of the cases-

Don West: This is as tragic as any case we've talked about and is unnecessary as any case we ever talked about.

Shawn Vincent: Right. A lot of the times, the worst case scenario in a case is that somebody is dead, and the shooter's determined to be unjustified even when there seemed to be some reason for them to have reasonable fear. So this case, we're going to go... This is Davie, Florida, so famous in Florida for being the first stage of ground state. We have a guy named Keith Byrne. He's a 40-year-old father of three. He's a Marine veteran, and he's driving a utility truck. He's on the phone with a friend, probably shouldn't be, and inadvertently cuts off another guy who's driving a blue BMW. It's 22-year-old Andre Sinclair. He's also a father. In fact, he's got the mother of his child and his child in his BMW.

Shawn Vincent: They come to a red light. Now, Byrne reportedly rolled down his window and said, "My bad." This is what the friend of his who was on the phone with him testified to. So he says he hears, "My bad." So we think that Byrne's trying to apologize for cutting the guy off, and then he hears shots fired. What we learned from local reporting and from the law enforcement agency that investigated is that Sinclair gets out of his BMW. He's armed with a gun, and he approaches Byrne's truck. I think I remember hearing some suggestion that Sinclair fired first.

Don West: Here's where I was confused, just for a second, as you were outlining those facts, because I had read at least one article on this. I think maybe Sinclair might even have been a passenger in the BMW.

Shawn Vincent: That might be true.

Don West: I think maybe his girlfriend was driving the car, and their child was in the car. Clearly, that Byrne cut him off and was apparently ready to acknowledge fault, I guess whatever traffic incident there was. So this even becomes a little more confusing and complicated. But let's assume all of that to be true, that Sinclair is the passenger in the BMW, his girlfriend drives, stops the car. Even under that scenario, Sinclair gets out of the vehicle to approach Byrne's utility truck. Byrne rolls the window down and by the account of the friend who overhears some of it on the phone call was preparing to or had already begun apologizing and accepting responsibility for whatever traffic incident took place.

Shawn Vincent: Right. But what happens instead is there's an exchange of gunfire. Perhaps Sinclair fires first. Byrne returns fire. Byrne is struck in the chest. He dies in the seat of his utility vehicle. Sinclair is struck less critically, but nonetheless fatally. He's taken to the hospital, and he dies later. Now, the police come immediately, and they investigate this. One of the officers who does the PR for the law enforcement agency said that they would have, after a brief investigation, arrested Sinclair had he not died of his injuries. So from what we know, he's clearly the aggressor here and by that account, Byrne justified in returning fire. You get someone pulling a gun and approaching your vehicle, especially if they're shooting, that's as justified as you can get, right?

Don West: Yeah. It may not even matter legally at that point who shot first. If Byrne is there in his truck, and he sees Sinclair approaching him, sees a weapon and sees Sinclair prepared to use it, you put all of that stuff together, and looks to me like an imminent threat of great bodily harm or death, the ability to use deadly force. I don't know what may have been said. This is another one. We don't know what happened. We only know the roughest outline because we don't know if Byrne saw Sinclair with the gun and reacted to that right or who fired first or whether Sinclair got the gun with the purpose of shooting Byrne as he got out of his car and approached him or if Byrne sees the gun, reacts to that, Sinclair reacts to Byrne's gun, who had reacted just . . .

Shawn Vincent: Those are all those nuances that you've talked about, the fact that. . . We've looked at nine different cases where we followed them all the way through the court case right up to verdict and sometimes into appeal, and during that process, lots of details come out. Some of this stuff, we're only able to talk about what reporters who were there in the courtroom talked about. You and I know there's all sorts of other stuff that jurors saw and beyond that stuff that the lawyers fought to keep out from the case, right?

Don West: Of course, yeah.

Shawn Vincent: So you can thin slice these things to the most minute degree. So we're talking in broad terms here about these cases. But in this case, what I see is here's a guy who, in all accounts, was justified, this is Byrne, in using deadly force. What little good that does him now because he's dead. There's something that Sergeant Leone from the law enforcement agency said about road rage scenarios. If you find yourself in one, just leave the area, even if you have to turn on a different street, right? I think one of the four elements of self-defense that we talked about in those nine cases that went to trial that we examined, one of those elements is deescalation, right, and that when you're a concealed carrier, and you have the weapon that can end all confrontations, that you have a responsibility to avoid confrontations whenever you can.

Shawn Vincent: We're talking about how angry people get in traffic and how quickly you said that these road rage instances are the only things we can go from zero to 100 in seconds, right?

Don West: You lose your mind. Yeah. This is the first time that we're really talking about some of those actual nuances. But let's take a minute, even if it doesn't get us anywhere at the end. Let's take a minute just in our human experience and our human experience with road rage and our experience understanding human nature and stuff and just imagine a couple of ways that this could have played out. We know the end was tragic. Both people died. We can assume the worst, especially on Sinclair's part because he got out of the car with the gun. He clearly started it. But can't you imagine that Sinclair is angry because he got cut off? We don't know what Byrne may have done, whether there was other stuff said or done or what have you.

Don West: Let's say Sinclair gets out with the gun being a jerk with the idea of just scaring the hell out of Byrne and saying, he gets out the gun and he wants to wave it at him and point him. He wants to brandish it. Not that he intends to shoot him at that point, but let's say he wants in his mind to teach him a lesson.

Shawn Vincent: He doesn't know that this guy is a gun packing Marine veteran. He thinks he's only one with a gun, and-

Don West: So he wants-

Shawn Vincent: ... "I'm going to show him."

Don West: Right. "I'll show him." So he gets out with the gun. He walks up to the car. Now Byrne's pretty confused. Here's a guy that he wants to apologize to for the traffic violation, and now he's coming at him with a gun. What is Byrne's natural response going to be to that? He has to think. He just has to think that Sinclair got out of the car with the gun to come up there and shoot him. It isn't likely statistically that that would happen. It's probably much more likely that he intended to scare him or just be a jerk.

Shawn Vincent: But that's not a gamble anyone wants to take.

Don West: No. He has to assume at that point. He got out of the gun for the purpose of walking up there and as stupid and ridiculous and as criminal as that is that that's a very possible outcome. So he has to get his gun, doesn't he, at that point to defend himself? Who knows that at that point Byrne doesn't see... I'm sorry, that Sinclair doesn't see Byrne's gun, and now it's two guys within a few feet of each other with guns, both of them feeling the other one's going to shoot them. In fact, that's what happened. Both guys are shooting, both guys die.

Don West: I think all of that because Sinclair got out of the car with a gun under circumstances that could never ever warrant that kind of response. It was stupid to get out of the car even if he wanted to give Byrne a piece of his mind. He walks up there and yells at him and walks away. But as soon as he escalates it to the point that-

Shawn Vincent: Sinclair, that is, brings the gun out. Yeah.

Don West: Yeah. Sinclair escalates it to the point that Byrne thinks he's in a life-threatening situation. There's no place to go.

Shawn Vincent: So essentially, it's mutually assured destruction, right? That you've got two people who are armed in a confrontation that happened with low context, right? They're not communicating. All of a sudden, the first attempt to communicate may have been seen as an escalation. You roll down your window. Maybe he's planning to get into it. That's a complication.

Don West: That's a terrific point that, from Sinclair's perspective, as he approaches the vehicle, the window goes down, and he may very well have interpreted that as a willingness for Byrne to engage.

Shawn Vincent: To increase the engagement.

Don West: Right. Why would he think that, all of a sudden, Byrne was going to apologize, right?

Shawn Vincent: Right. That doesn't seem the most likely.

Don West: So that is a recipe for disaster.

Shawn Vincent: Well, yeah. So as soon as the guns are introduced in that scenario, if both people are armed, you've just lit a fuse, right? It's almost-

Don West: It's like the-

Shawn Vincent: ... a point of no return here.

Don West: It's like the two guys standing in a pool of gasoline each holding a match. I'm sure you've seen that poster somewhere, right? It's assured mutual destruction.

Shawn Vincent: Yeah. So nobody's going to argue in this case that Byrne did anything wrong, right? Necessarily. He's certainly justified, and even the police are going to put all of the blame on Sinclair. If they both lived, Sinclair is the one that gets arrested and charged with murder or attempted murder if they both lived, right?

Don West: Sure.

Shawn Vincent: But that doesn't change the reality for Byrne that now that he's in this situation that this horrific result is most likely the one that's going to come across.

Don West: Absolutely.

Shawn Vincent: So what that means is if you're a concealed carrier, if you have a gun in your vehicle, then you want to avoid at all costs the confrontation that could potentially light that fuse and get you in a no-win shootout over whatever minor traffic violation that happened.

Don West: You can in hindsight look back and try to pick some points in time where something different could have happened. This is maybe a once in 100 million scenario. At the same time, the only way that would have stopped it for sure was for Byrne not to engage even in an attempt to be pleasant about it.

Shawn Vincent: Right. Even to go into a step further and just change course just to get away from the guy. Right? Even if he's going to a couple blocks in the wrong direction, just get disengaged completely because there's no way to apologize in that situation.

Don West: I think if Byrne sees Sinclair get out of the car, I'm going to assume for a moment that they were both at the red light, so that Sinclair's car was legitimately behind. They weren't both pulled off the side of the road, stop, but that Byrne stopped at a red light and that Sinclair's girlfriend stopped behind him. But as soon as Byrne realizes Sinclair gets out, he has to run the light. He has to do something to physically get away because there is no good outcome at that point. He can't take the chance to engage for fear of exactly what happened.

Shawn Vincent: Now, we talked about all the interactions that you have with CCW Safe members. I recall you talking about a member who shared a story with you about a road rage incident where he was able to disengage. Now, we're not going to use names or anything. But you remember the story where they ended up at a stop sign in a relatively rural place?

Don West: Yes, yes. I do remember. I'll just kind of paint a very big overview of it. But there was the potential for a serious road rage incident. I don't know if it started with someone being cut off or some perceived injustice. As often happens, one person starts following the other closely. You've seen those people that run up, and tailgates are real close, or they pull out around and slow down in front of you.

Shawn Vincent: Sure. I've heard about that.

Don West: Just being aggravating and trying to get you to engage. This was a similar scenario, where the guy got in front of him and then stopped at a stop sign or a stoplight. The member ultimately who was behind him at this point saw him start to get out of the vehicle. Essentially, he was blocked in from the front, and I think, if I remember correctly, he either believed he was going to get out or didn't even want to take the chance that he might get out and engage face to face. So he did the one logical thing that he could do. Fortunately, under the circumstances, he put his car in reverse and he just simply drove back 75 or 100 yards and watched what happened. I think, yes, at that point, the guy got out of the car, looked at him, then got back in the car and left.

Shawn Vincent: It's such a befuddling move at that point, and it was clearly a disengagement. It was as simple like, "I'm not messing with you. You win." Now-

Don West: Now, at that point that if the other driver attempts to engage, he's got 100 yards to walk or 50 yards to walk where the other driver can then reassess and calculate and decide what to do at that point, what other kind of evasive action to take or what have you. I thought that was so smart. It's gutsy to me in the sense that you don't want to give in. You don't want to throw up your hands and surrender. You want to meet face to face the idiot who if not causing the problem to start with is reacting unfairly to you, blaming you for something that even if you did it wrong, it wasn't that bad. It certainly doesn't warrant that kind of disproportional reaction. All of a sudden, it just starts churning, and people do such incredibly foolish and dangerous things.

Shawn Vincent: I know. I know. Some of the best marital advice I've ever gotten was the idea, do you want to be right, or do you want to be happy, right? So I’m quite content being wrong and happy frequently. I think in self-defense or something, somebody said, "Do you want to be right, or do you want to be alive, or do you want to be right and have someone's blood on your hands from a conflict that could have been avoided?"

Don West: Anytime you decide to engage somebody in one of those situations, you are making the assumption that they will act reasonably and rationally even under an emotional circumstance. That's a bad assumption because there's a lot of crazy volatile people in this world, and even otherwise pretty stable normal people have trigger points, and for some reason, it seems to be, driving is one of them that-

Shawn Vincent: Yeah. At the beginning of this conversation, you were talking about how often you'll field phone calls where people are in trouble for brandishing while driving, right? So brandishing is in most places, I think in Florida, it's just true is considered an assault, right? If you brandish a weapon, that's a threat of deadly force.

Don West: Yeah. It depends on where you are. Not all states have the crime of brandishing, but they all have some variation on assault. Assault is typically a pointed threat to someone. For example, if you point a gun at somebody, you're often guilty of the crime of aggravated assault. That would be assault without the intent to kill. It means non-justified assault, essentially.

Shawn Vincent: As opposed to a defensive display. We've talked about that before, where you're neutralizing a threat by demonstrating that you have force and are willing to use it and --

Don West: When you would have the right to use force. So the reckless display or the aggravated assault is when you don't have the right to do that. Assault is often intentional and pointed in a lot of places, has a mandatory prison sentence that involves a firearm. Brandishing is more of a reckless kind of waving around, threatening, not necessarily pointed at somebody for the purpose of shooting them or even for the purpose of making them think you're going to. But it's kind of a reckless display and is still a criminal offense. It can be a serious criminal offense.

Shawn Vincent: Here's why I bring this up.

Don West: But non-justified. It's not brandishing if you did it in response to a legitimate bonafide threat.

Shawn Vincent: Sure.

Don West: The problem is a lot of times it's not. It's too much force. It's trying to win the argument to prove that you're the one who's capable of using force.

Shawn Vincent: Yeah. So here's why I bring that up. I'm thinking about this case. We talked about, way some time ago, Indiana, south of Indianapolis in a rural community. We have two neighbors, one of them is a firefighter, and the other one is this crazy-haired wild guy. You know Laura Dern's father? What's his name, that actor?

Don West: Bruce? Bruce Dern.

Shawn Vincent: Bruce Dern. Picture Bruce Dern with his hair all crazy, acting crazy like Bruce Dern does. This is his neighbor. Apparently, they'd been at it for years. There's a fence dividing their property, the firefighters out working in his yard. He's got a security camera out there, full-color security camera recording for some reason, maybe because he's had problems with his neighbor before, right? So the neighbors there. They get at it. I don't know if you can hear what they're saying, but they're shouting at each other. This Bruce Dern neighbor, he's on his riding mower, and they exchange words. I think there's finger flicking exchanged. Then the lawnmower goes off frame, right? Then it comes back on frame. The Bruce Dern character on the mower picks up this revolver. He puts it in the air, and he shakes it. Kind of there's waves that like, "Hey, asshole. I've got a gun."

Shawn Vincent: Well, his neighbor, when he does garden work apparently is carrying his pistol that's loaded with 16 rounds, and he pulls it out and just unloads the whole thing on this guy. Couple of rounds hit him, and he falls off. The rest of the rounds hit the lawnmower. Miraculously, the neighbor stands up, walks back inside and calls for help, and he dies in his house. But all this is to say that brandishing may be illegal but is also the best way to get yourself shot.

Don West: Oh, sure.

Shawn Vincent: Right? Let's imagine in this case that Sinclair didn't have any intention to murder Byrne for cutting him off, but was trying to most likely really be the big shot here, right, by introducing the gun into it. You don't know who's carrying and who's not. I think Sinclair assumed Byrne didn't have a gun and that he had no control of this situation.

Don West: I think that's highly more probable than that Sinclair had gotten out of the vehicle with the intent of shooting him. I think you're right. He lost control, and all hell broke loose. It's interesting when we're talking about brandishing because, picture this scenario if you would. We talk about things that are really a bad idea. But they aren't necessarily against the law. Picture yourself in a parking lot, and two people are vying for a parking space. One of them sneaks in and grabs it, and you're angry because by all rights, that was your spot.

Shawn Vincent: He unclaimed it.

Don West: Yeah. You had been waiting for it, and this guy sneaks right in front of you, and you pull right behind him, and you get out of your car and walk up to this guy's window to give him a piece of your mind. That's not illegal. You can cuss out somebody. You can yell at him. You can go up there and criticize his driving and say, "You low life, what a lousy thing to do? I hope your kids don't see what kind of a ..."

Shawn Vincent: S.O.B. you are. Yeah.

Don West: Yeah, yeah, yeah. That's a free exchange of ideas.

Shawn Vincent: Yeah. Ideas.

Don West: Okay. But if the guy behind the wheel, and if the guy doesn't threaten him, if he doesn't raise a hand, if he doesn't do anything other than yell at him, you don't have the right to use force in response to that. You can't hit him because he thinks you're a lousy driver.

Shawn Vincent: Meaning you the driver of his car. You can't-

Don West: Yeah. You can't reach into your glove box or on your seat and raise a gun to point out to him because you don't like what he says.

Shawn Vincent: Because he's in your window giving you a piece of his mind.

Don West: A lot of this stuff I think starts out even like that. A guy that's a bit of a hothead but not necessarily intending any harm or any violence and just-

Shawn Vincent: Not necessarily wrong about the traffic, right?

Don West: ... puts themselves in a situation where it becomes volatile, not intending that it will ever go anymore. But they just want to vent. They want you to know for sure what a jerk you are, and then one little thing compounds, and another little thing. Pretty soon, somebody feels a little bit threatened. Then, in response, to the other person feels threatened. Then, pretty soon, either it escalates to violence, and the person who hits first is wrong, they're committing a crime, or the person that raises the gun has now introduced lethal force into what's otherwise a non-self-defense scenario and is guilty of a crime.

Shawn Vincent: So this makes me-

Don West: That is brandishing.

Shawn Vincent: This makes me think of the Ronald Gasser case.

Don West: Wow, sure.

Shawn Vincent: So we got to-

Don West: What a road rage case that is.

Shawn Vincent: ... New Orleans. It's Ronald Gasser. So he doesn't know that this guy that he cut off is Joe McKnight, a former Jets player, a local football hero who made good.

Don West: And the son of one of the sheriff-

Shawn Vincent: I don't recall that detail.

Don West: I may be mistaken by that, I apologize. I thought even his family may even have been connected to law enforcement.

Shawn Vincent: He's a local hero. But they didn't arrest Gasser originally. There was a lot of pressure to make an arrest. There is a racial thing too. Gasser's white, McKnight's black. The community was upset when there wasn't an arrest immediately. But notwithstanding, Gasser cuts off McKnight. There's a several mile, what the law enforcement described as a tit-for-tat road rage incident. They're cutting each other off and driving. People thought they were drag racing down. They had security cameras from multiple businesses showing them going till at least a couple of miles later. They come to an intersection where there's cars behind them. There's no room to navigate anymore. This scenario, no one's going to back up 100 yards. Right?

Don West: Sure.

Shawn Vincent: What we know is that McKnight gets out of his car and comes over to Gasser's vehicle whose window is down. There's at least one witness who suggests that Gasser said, "No, you come here." As in they were engaging with each other. McKnight comes to Gasser, leans into the window of the vehicle, meaning his hands, forearms, crossed the threshold of Gasser's rolled down driver's window. That's when Gasser says he felt threatened. He had a gun that he had already pulled out on a seat. He fires three times. McKnight dies. Gasser's eventually arrested. Eventually found guilty of second-degree murder. I think he just lost his last appeal.

Don West: He has a substantial prison sentence as a result of it, I think.

Shawn Vincent: Yeah, at least 17 years. Yeah. So McKnight wasn't armed. We know that actually there was a gun in the vehicle that he was in. He didn't bring it out with him. But this encounter, I don't know if Gasser was trying to apologize, like Byrne was in this scenario that we talked about earlier, but you've got somebody coming up to your window. You're penned in in traffic. You're strapped in with a seatbelt. You're very vulnerable. It's a scary situation. But-

Don West: But apparently, Gasser rolled the window down. There's no evidence that McKnight smashed the window. Correct? I think what was really in dispute was what McKnight's intentions were, even if he put his hands on the window frame of the door. Was that a threatening gesture, or was he just sort of resting there as he leaned in to give Gasser a piece of his mind.

Shawn Vincent: The appellate court just decided that that was not an aggressive gesture. Right? That that didn't because-

Don West: So you could not respond to with force.

Shawn Vincent: That's right. Because in Louisiana, they actually have on the books a law where crossing that threshold could open the door to a use of force incident, like a breaking and entry kind of thing, right? You've told me before that reaching into someone's vehicle in some places can be considered a felony, right?

Don West: A very serious felony. If you were to reach through an open window and hit somebody in the face that could under Florida law be considered burglary of a conveyance with an assault or with a battery, which could make it a very, very serious felony, as opposed to a misdemeanor if you just happen to hit somebody -- a battery. When you combine that with penetrating the space of the vehicle, it's like reaching through a window of a house and hitting somebody. It's a protected space. So the crime is additional crimes and enhanced crime.

Shawn Vincent: Yeah. But if you rolled the window down, or if you open the door, you're changing the scenario a little bit, aren't you? As-

Don West: Yeah. It's an invitation. It's consent of burglary has to be nonconsensual. So you can't open the door of your house or your car, invite someone in and then claim that they burglarized your place. If you invite somebody into your house, and then you get into a fight with them, and they hit you, that doesn't make it a burglary.

Shawn Vincent: Right. So we did the case out of Dearborn, Michigan, Ted Wafer case, where he shot Renisha McBride, where there's that threshold where the big mistake was that Ted Wafer opened the door in the middle of the night to a person who was pounding on it. He thought they were trying to break in, but you don't open the door for someone who's trying to break in, is the lesson there. So I think the lesson here, where we're always looking for the lesson for the concealed carriers in these cases that we look at, and the lesson here is you don't roll down your window in a road rage incident. I don't think anything can ever good come of it. It's an escalation. It's an invitation.

Don West: You made a great comment when we were talking about what Byrne did obviously in an attempt to begin accepting responsibility and apologizing how that could be misconstrued as a willingness to further engage and is not going to be assumed as being a friendly gesture. I think that it's going to be assumed as enhancing the level of hostility, frankly, misinterpreted so easily.

Shawn Vincent: So what I've written about this case, I basically called road rage a no-win situation for a concealed carrier. I think that the end, the only way to avoid it is to go.

Don West: Even if you're right. Even if it's the other guy's fault.

Shawn Vincent: Especially if you're right. Yeah. Just go the other way. Get out of the way. Drive conspicuously in the opposite direction to send the signal that you're not going to engage, that it's over, and then only if they've relentlessly followed you-

Don West: I made the comment that Byrne should have run the red light. I don't mean literally run the red light, but maybe-

Shawn Vincent: If it were safe for him to do so-

Don West: Maybe if-

Shawn Vincent: ... or to turn right or to ...

Don West: Whatever it took for him to improve his position of safety rather than exposing himself to the risk of not knowing what Sinclair had in mind as he was approaching his vehicle. Frankly, if he got a glimpse of the gun, he would have to assume the worst at that point.

Shawn Vincent: That sounds like a good last word on this case. Always a pleasure to chat with you, Don.

Don West: We don't always know where we're going, but we eventually get there, and-

Shawn Vincent: That's true about every place.

Don West: I enjoy these conversations greatly. I think that sometimes we may cover the same ground, but it's slightly from a different perspective, maybe from someone else's eyes as opposed to the way we first talk about it. I have to think that this stuff isn't hard, but that doesn't... It's not complicated, but that doesn't make it easy, I guess. It takes a lot of thinking and visualizing and frankly being very, very conservative in how you deal with people.

Shawn Vincent: Yeah. You approached me with the opportunity to work with CCW Safe and tell some of these stories, right, to communicate to the members some of the benefit of the experience that we've had together and what we-

Don West: Sure. That's right.

Shawn Vincent: ... see from here. I was excited about the opportunity because I believe in the Second Amendment, and I believe in the right to defend yourself. But I've seen, through my work, so many people get it wrong and people I think should be free go to jail for the rest of their lives because I don't think they had the imagination to understand what would happen to them after the fact. Most defendants that I've had a chance to work with don't even understand how a trial unfolds. When they pulled the trigger, they had no concept of all the legal nuances that they would face for doing something that they felt and had felt for a long time they were justified in doing.

Shawn Vincent: So like you say, it's difficult, but it's not complicated. I think really what we're trying to do is open people's imaginations as to how these things actually play out, how the aftermath of these things actually unfold in real life through stories that we find from people who've gone through them.

Don West: I think we learn by that. I know that when I used to study for a test, it was always good for me to take practice tests to put myself in a similar situation. That was usually more helpful to me in figuring out how to pass the test. I was going to take than it was just studying the material in a vacuum, actually looking at it in --

Shawn Vincent: What's the practical application that you're going to be facing --

Don West: Exactly. I think we do that a little bit. I think every time we expose people to the things that we've learned, that we've been exposed to by looking at this stuff and having experienced it, that we create an opportunity for people to connect with the information that they might not connect with if they just read a pamphlet or read a book on self-defense law. So that's --

Shawn Vincent: There you go.

Don West: ... enjoyable. As always, thank you.

Shawn Vincent: Thanks for talking.

Don West: Look forward to the next time we get together in person or across the country.

Shawn Vincent: Or through the powers of technology.

Don West: You bet that, Shawn.

Shawn Vincent: Don, take care.

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