In Self Defense - Episode 47: The Legal Risk of Drawing Your Firearm - a podcast by Mike Darter

 

Don West and Shawn Vincent explore several cases where a firearm was used to threaten force, but no shots were fired. Some resulted in prosecutions, and some did not. Each helps concealed carriers understand the legal risk that comes with unholstering your weapon, even if you don’t fire it. 

 

TRANSCRIPT:

The Legal Risk of Drawing Your Firearm

Don West: Well, I am ready to talk. I am re-caffeinated.

Shawn Vincent: Re-caffeinated.

Don West: I've never heard that before. I don't think I could have possibly made it up, but caffeinated and then of course decaf and all of that. But I am now re-caffeinated. I was heavily caffeinated earlier today, but I was losing my energy, and now I am re-caffeinated so I'm raring to go.

Shawn Vincent: I had to stop with the caffeine. My heart rate gets a little high sometimes, so my doctor encouraged me to cut out caffeine altogether. So I am decaffeinated.

Don West: Caffeine doesn't affect me dramatically. I know it does some, and I can really overdo it. But mostly, I like the taste of coffee. So that's my first choice, and the caffeine doesn't bother me. And I have this sort of slow, methodical approach. Actually, my ex-wife used to say that I'm so slow I have to speed up to stop. A little caffeine doesn't hurt me a bit.

Shawn Vincent: I was explaining you to somebody recently Don, about how that slowness that your ex-wife talks about, I call thoughtfulness. Be very contemplative, right? I have this picture in my head, I'll say something to you that maybe is an interesting idea, and you'll stop and you'll stare for a minute. You might rub your head for a second, and then you'll start nodding your head and you'll come around to it. The best is when it's a joke, because you'll take it and you'll hold it in for a second, and then you'll get a big smile and then you'll laugh. It was a good joke. But it's a good two or three second delay.

Don West: Unfortunately that's not something that I do on purpose and it's something that can be a little off-putting.

Shawn Vincent: I've seen judges be off-put by that before.

Don West: As a matter of fact, a couple come to mind, one in particular but no offense was intended. I'm sorry. I just need a little time to process and I want to maybe savor the moment for a second. I'm not afraid of gaps, just dead air, I guess we should call it, in radio biz. And this is who I am and how I am, and I do have to compensate for that every once in a while.

Shawn Vincent: I, for one, find it very endearing.

Don West: It's kind, thanks. My ex-wife wasn't always so kind. Regardless, we've all moved on.

Shawn Vincent: And here we are.

Don West: So how are you today? What are we going to talk about?

Shawn Vincent: We're going to talk about -- we're going to talk about self-defense. This might be a surprise to anyone who listens to the podcast. I pulled out ... We talked about a pretty interesting case out of Mississippi not long ago, where the lady who was the attendant at the laundromat.

Don West: Yes.

Shawn Vincent: Yeah. One of the patrons got a little crazy about refund policy on the machines and attacked her. They went down to the ground, there were some scratches and some light bruising. The attendant got away, went outside, called the cops, got her gun, had it in, like, a low ready position. Then this crazy angry patron came back out to re-engage her. The attendant lifts the gun up, points it at her, and that was enough. But angry patron backed off. She got a car she left before the police arrived. And I thought it was interesting. It was one of the ... I thought it was interesting. It was one of the few cases that we've talked about, where a gun was used but not fired in a self-defense situation. And we got into a discussion about the differences between a defensive display and brandishing. And I know we've talked to Mike and Stan, founders of CCW Safe before, and they talk about that and you take some of these phone calls, right Don? Where I think brandishing is one of the biggest issues that our members might find themselves wrapped up in. Does that that jive with your experience?

Don West: That's right. Probably if you just look at gross numbers, we probably get more calls that flow out of a brandishing type scenario than any other type. It can take many, many forms. But to be clear, brandishing has a pretty specific legal definition in most jurisdictions. There's crimes that are actually called brandishing. It's often more loosely talked about as sort of recklessly displaying a gun, maybe waving it around in a threatening way. But when we talk about brandishing, we're talking about an act of an aggressive act that is ... Well, it's a crime in and of itself. If you're convicted of a crime like brandishing, it can have very serious consequences with it. Defensive is not really a legal term. That's a term that's coined.

Don West: And I don't know where I heard it the first time. I think I do, actually. I think it was Massad Ayoob, who will be a name known to do many of the listeners, I think. A very well-respected experienced firearm instructor. Has literally written the book, several books on things. He has an instructor program. He teaches classes -- group 20, 40 and 80, I think. And they represent the number of hours that are involved in his programs. A combination of self-defense techniques and law-based instruction and live fire shooting. In any event, he's a fairly prolific writer and speaker, and I remember him being interviewed and was being talked to about this notion of brandishing. And he characterized the other side of that as defensive display. But I don't think it has a specific legal definition. It's not really something you would find in a statute somewhere, I wouldn't think.

Shawn Vincent: Yeah. But for the sake of our conversation, if you are in a situation that could be a self-defense situation, and you pull out your weapon and the threat of the use of force allows you to get away without having to use the deadly use of force, we're going to call that a defensive display as opposed . . .

Don West: Yes. Basically, you're really talking about an escalating self-defense type scenario and ongoing escalating threat, and that the display of the firearm, in other words, showing that you have a gun to the other person who's being aggressive, is enough for them to back off.

Shawn Vincent: That's right.

Don West: To discontinue their aggression. Yes.

Shawn Vincent: That's right.

Don West: I think that's a fair thing to discuss, and a good definition of that.

Shawn Vincent: Well, we've also seen cases where maybe that was the intent, with the person who showed the gun, maybe they thought they were doing a defensive display. Under the circumstances, law enforcement took that to be a brandishing scenario. So let's get into ... I found this case from Sacramento, California, a guy named Brandon Jackson. This is your textbook brandishing situation. He gets in a road-rage argument with this woman who's driving another car. They pull up to a red light. Jackson is annoyed and upset and angry, and he pulls out a gun and then he points it at the other driver. The other driver freaks out. She speeds through the red light, drives away. Jackson ends up going into a different direction. The confrontation is over, but she obviously calls in what happened, describes the car. Moments later, Jackson's pulled over, they find the gun. He didn't have a permit for it. And then they charged him with a weapons violation and then producing criminal threats, were the charges I read in the paper. So this is a classic brandishing.

Don West: Yeah. In some places they call that terroristic acts even. It's the idea of, by displaying the weapon in such a reckless threatening way, that you're terrorizing the person. I don't know if he was charged with that, but I've seen that charge in a couple of places actually.

Shawn Vincent: Sure. And I've looked these up as a whole, simple assault is one of the charges that I've seen thrown in when there's these brandishing type cases. So it seems like there'd be a whole recipe book full of different things you can be charged with when you display a gun like that, depending on the circumstances.

Don West: The names are a little different depending on the jurisdiction. Brandishing is probably the one that's best known, depending on how the gun is displayed, and how threatening it is being used. For example, in Florida, if you point a gun at somebody in a threatening way, without firing it, and even without any intent to harm or kill, but certainly demonstrating the present ability to do that, that kind of threat is characterized as an aggravated assault. The firearm makes it aggravated. The assault is the threat by word or act. You combine those two and you can go to prison for several years, and many people do. And in fact, there is a mandatory minimum in Florida for that very act of threatening somebody with a handgun.

Shawn Vincent: Is that 10 years in Florida? Is that a 10, 20-

Don West: Last time I looked, the mandatory minimum for the crime was three years. The maximum was five, and that's without it being fired. Or any injuries or anything like that. So aggravated assault is typically a five year maximum felony with a three year mandatory minimum.

Shawn Vincent: But you'd agree that this road rage incident, that's sort of a classic, even though he didn't get charged maybe officially with brandishing, that's a classic brandishing incident?

Don West: Yeah. Yeah. Brandishing, aggravated assault. Any number of ways doing something like that could be characterized as a criminal act, and a serious one. There does not appear to be, in this case, any legal justification whatsoever, other than he's mad at this woman for something real or perceived-

Shawn Vincent: And why did he want to be threatening and scare her?

Don West: Yeah, he clearly wasn't responding to a threat of hers. There's no suggestion that she tried to run him over. No suggestion that she had a weapon, that she was in some way displaying. I guess whatever happened on the street just made him so mad he thought somehow, his way of addressing the problem would be to point a gun. And what an idiot. Of course, we say that often in these cases because it sets the stage for tragedy. And we've had other cases where something that starts like this results in one or both people getting shot and sometimes killed.

Shawn Vincent: Right. So we recently talked about a case where there's a guy in his work truck on the phone with a friend. He's a veteran Marine by the way. And he cut off this other guy in traffic, and he knew it, and he knew it was his fault. So they pull up to a red light and he rolls down his window if it wasn't already rolled down, and he leans out to try to say, "Hey, my bad." His friend on the phone heard him say, "My bad." But that wasn't appropriate or good enough for the guy who got cut off. He gets out of his car, he has a gun. So here's this guy getting out of his car, walking up to the vehicle of a guy who he doesn't realize as a Marine veteran who's also armed. He pulls his gun, they have a shootout right there in the middle of the street. Both of them ended up dying.

Don West: Yeah. Tragic, tragic consequences. And, well let's talk about that for just a second to compare what that case was, and this one that we're talking about, just now, in terms of the reaction of the driver. Not the aggressor, the driver in the case. I guess that was down in Florida, Davie, Florida.

Shawn Vincent: That's right. It sure was.

Don West: He decided to try to mitigate whatever it was that he had done wrong by apologizing. But in order to do that, he stayed where he was. He rolled the window down and engaged. We don't know what else he may have said, but you talked about it. Then the act of rolling the window down may very well have been perceived by the other guy who was hot enough to get out of his car with a gun, to be an act of aggression, or an escalation of some sort.

Shawn Vincent: That's right. We talked about how in road rage incidents, almost nothing you can do can de-escalate it other than just getting out of there.

Don West: So even if you assume he was de-escalating by rolling the window down, it may very well have been perceived as a willingness to engage, and tragic consequences. So I'd like to compliment this unnamed woman in this incident, in this I-80 case, for having the presence of mind to do nothing more complicated than just driving off. Just getting the hell out of there.

Shawn Vincent: And then ended the confrontation.

Don West: Yeah. It put her in a safe position. Not everybody can because of cars and being in front or around. But she had the presence of mind to see this guy with the gun, knowing no good's going to come out of her trying to reason with him. So she just got out of dodge and then also called it in apparently. And this guy, I guess, what he did there was he got on the interstate, because that's why they call it the I-80 case. He was eventually pulled over on the interstate driving.

Don West: Let's talk about what's going on with this guy, because as a criminal defense lawyer, I've seen it from this guy's side, meaning I've represented people who have done these kinds of things. I believe as part of my criminal defense practice, I was doing public service work by accepting court-appointed cases. Sometimes I really didn't have any choice. I needed the money early in the career, and it was a good source of income. I'd spent some time at the public defender's office later on when I was much more established and financially independent. I didn't need to take court appointed cases, because sometimes they were a huge pain in the neck with hostile clients that are ungrateful for everything that's done. It just kind of comes with the territory. But I do think that it keeps the system honest if capable, experienced lawyers participate in the public defender court-appointed system. So anyway, I did it for a long, long time.

Don West: So I've represented these guys, and as we joked in a prior segment, I see bad people at their best. So I'm seeing the best side of these guys coming in. But I can just imagine from the reports and the interviews, how volatile, and how quick the emotional triggers are. Many of them have ... I'm no psychiatrist, certainly not a neurologist, but many of these guys in my experience have a frontal lobe impairment of some kind. So whether it's an impairment caused by alcohol or drugs or physical abuse or any number of different conditions, can result in impairments in the frontal lobe, which impairs executive functioning or reasoning. And most importantly, I think impulse controls.

Shawn Vincent: Sure. In our family, we call that a screw loose.

Don West: Yeah. They just go off. And I don't know if they can control it or not. Some can better than they do, but I suspect there are many that just can't. And once they get started, it's going to have a bad outcome, and there's very little that can happen, good, when it comes to this. So let's talk about this guy. He's driving down the road. Something makes him mad. Mad enough that he displays a gun to this woman, who apparently had not threatened him in any way. So we know that's a crime. We know it's a crime that's worthy of the local deputies enlisting the help of the California Highway Patrol, chasing this guy, catching him on Interstate 80 and arresting him, finding the gun in the car, and he doesn't have a permit. I don't know if he has a criminal record that would keep him from getting a permit. There are lots of places in California where you just can't get one. I don't think Sacramento necessarily is that area.

Don West: So here's a guy who's carrying a gun illegally.

Shawn Vincent: Right.

Don West: And threatens a woman with it, and then drives down the road, what? Thinking he's not going to get caught? Or doesn't process that well enough. Doesn't even think about what happened in the sense of, "Geez, I had to at least get rid of this gun. Don't you think?"

Shawn Vincent: Sure. Well he's not considering the severity of the crime that he just committed.

Don West: Maybe that's it too. Maybe he doesn't think it's a big deal. Maybe he does it all the time. But the list of charges is pretty lengthy. So the illegal possession of the firearm is completely separate and apart from the threatening use of the firearm. Now they're all part of this continuous event. But what he did to threaten this woman, the brandishing assault type behavior, is distinctly legally separate from what happens, maybe 10 miles down the road when he gets caught with the gun. And he's not allowed to possess. So he's got those charges. He's got the assault-type brandishing charge. And if he has any kind of criminal history, he's looking at a lengthy prison sentence. Why? Well, he was committing a crime all along by having the gun, but to be so reckless and irresponsible and volatile to display it in that way, as a guy that I guess ...

Don West: Maybe the end of this long rambling story is, that's a guy whose his own worst enemy. That's a guy who's completely unpredictable. If you pull out a gun in that situation, what is it going to take for him to pull the trigger? Maybe not so much. So how do you reason, how do you conduct yourself rationally and logically when you're faced with somebody like that? And I submit you can't. You just can't. You have to save yourself, protect yourself, and depending on the dynamics of the situation, respond to it in such a way that will keep you safe.

Shawn Vincent: Yeah. And I think if we all ... You don't have to have a frontal lobe problem to have a bad temper. Right?

Don West: Yeah. I'm not offering that as any sort of informed opinion. And I'm certainly not offering it as an excuse.

Shawn Vincent: No, but-

Don West: I know from-

Shawn Vincent: Go ahead.

Don West: Well, I was just going to say, I know from my work, representing people that later after the cases, well months or years after the event has occurred and you're sitting there doing scans and neurological testing, and you're able to, with these instruments, actually identify some brain stuff that will help explain the lack of impulse control. And sometimes that's very favorable in a mitigation context, in a sentencing context, in no way makes you not guilty of the crime. It may warrant some lesser sentence if there's a significant impairment, but anyway, Shawn, I guess my point is there may be all sorts of biological and neurological and substance abuse components to this. But the bottom line, the behavior is scary and threatening and very dangerous.

Don West: To your point, you're absolutely right. I don't know why people fly off the handle. I would agree not all of them have some diagnosable identifiable brain injury. They could just be what? Assholes, maybe.

Shawn Vincent: Sure. Or just ... I have had very strong reactions in the car when my kids are in the car, especially when they were little, and somebody did something dangerous in traffic. And I've felt a sort of anger at that threat to my children's safety come over me. And I guess I'm always looking for what are the lessons for concealed carriers. Anyone who's listening to this podcast comes to this with a responsible gun ownership mentality. You're not listening to this podcast if you're not interested in being the most responsible gun owner you can. But if I'm looking for lessons in these cases for us and for our listeners, it's knowing yourself, and knowing what circumstances might cause you, because I think everyone can get irrational at some point under the wrong circumstances. You tell a story all the time about a guy on a jury who decided he was a concealed carrier, but he didn't put a gun in the car cause he gets too hot tempered. It's about knowing yourself, right? It's about knowing yourself and when's it appropriate to carry it, and when's it maybe not a good idea for you? Anyways.

Don West: No, that's well said.

Shawn Vincent: So let's look at the complete other side of this. Another case where a gun is displayed, but there's no charges for the guy who pulled it, right? We're going to go to Allentown, Pennsylvania, right? And there's this road rage incident where one guy who probably has frontal lobe issues, Don, freaks out, chases this guy for a couple of miles, apparently. It ends in, I don't know if it's a an alley or some dead end there. They're out of the car. The guy who was losing his mind has a knife, attacks the guy he had been chasing. That guy punches him in the face. They wrestled each other to the ground. And then that's when this third party comes by and he's a legal concealed carrier. He pulls out his gun and tells the guys to stop and essentially holds the attacker at gunpoint until police arrived. Somebody else calls the police.

Shawn Vincent: And so police show up and here's two guys lying on the ground. There's a knife some distance from them, and there's a guy standing, legs shoulder width apart, in a shooting stance, both hands on his gun pointing at these guys. And he was referred to in the reporting I saw as a Good Samaritan. So here's a case where-

Don West: I saw that. There was interesting choice of terms, right. I guess Good Samaritan in that he was able to put to a stop whatever was happening at that point. So there was no more violence because he was the one who was then in control.

Shawn Vincent: Sure. So he intervened into somebody else's self-defense scenario, I suppose. And he used the threat of deadly force to stop it. Whatever he did, however crazy and angry this attacker was, the sight of the gun caused him to reconsider his aggression, and he stopped. But I don't know. You tell me. We talk often about Andrew Branca's idea of legal risk when you use a gun for self defense, that if you're bring the gun out, you're opening some non 0% chance of legal consequences. Did this guy take a risk by pulling out his gun and holding these people at gunpoint until the police showed up?

Don West: He clearly took a big risk because he needed to make some decisions, and he may have had to take sides as to his interpretation of what was happening. Now it's like so many of these cases, the deciding points are often buried in the details. So we don't know exactly when he became knowledgeable of this. He probably didn't know anything about the car chase and the circumstances that brought these two guys together in this parking lot.

Shawn Vincent: So would he know even who is the first aggressor was?

Don West: He wouldn't. I wouldn't think he would know who had a weapon first, or who threatened first, or what may have led up to this, or maybe one of the guys was trying to chase down a bad guy in some sense. That's the thing. And Andrew Branca points that out, that you put yourself in the shoes of the person defending, and that your rights typically don't extend beyond what that person could have done.

Shawn Vincent: Yeah.

Don West: So you need to be right. Now, in this case, he probably saw an unarmed person being attacked by an armed person-

Shawn Vincent: Sure. The knife.

Don West: The way the circumstances are described when these two cars came to a stop, and we should talk about how on earth that happened. But in any event, these two are-

Shawn Vincent: Yeah. If someone's chasing you, why do you stop and get out to confront them?

Don West: Yeah. Why don't you, if you're going to stop your car and some guys chasing you, why don't you stop it in front of a police department and call 911 and say, "There's some idiot behind me who's been chasing me through town for 20 minutes"? But in any event, he sees, I'm assuming, two guys out of their cars, one of them with a knife who's being very aggressive to the other. And that he decides to put a stop to it. So when I looked at the video, I got the sense that maybe he wasn't actually taking a side-

Shawn Vincent: No. He seemed like holding the gun on both of them until the cops got there.

Don West: Yeah, yeah. That he was just making them stop and trying to communicate that whoever ... If they both don't stop, one of them is going to have a problem if they continue the aggression. So my guess is if the guy with the knife hadn't dropped it, or if he'd tried to stab the other guy, the guy with the gun may have very well have intervened at that point.

Shawn Vincent: Sure. And in the video you talk about, you can see a fourth party come over and pick up the knife, kind of with just his index finger and his thumb, and carries it away. Understanding that it's evidence, trying to keep his prints off at as best as he can.

Don West: Well, maybe that's one interpretation. That's why these things are so tricky, Shawn, is because I saw that video and he did exactly what you described. Kind of pinched the end of the handle of it and carried it open. He may very well have had the presence of mind to show the guy with the gun that he wasn't a risk. So he was holding the knife in such a way that he couldn't use it as a weapon, and got it away from these guys to be sure the guy with the gun knew that he wasn't going to involve himself-

Shawn Vincent: And then of course in this case, there's a fifth guy who's the one with the cell phone camera. So there's a lot of people. It's a well-documented moment, a well-witnessed moment. But you know, another consideration on this is, when the police show up on a scene, I don't ever want to be the guy standing there with a gun drawn. You know what I'm saying?

Don West: Talk about a confusing situation. How are the police supposed to figure this out? And they're rolling up and they see a guy with a gun.

Shawn Vincent: Yeah, that can be a very tense situation very quickly.

Don West: Now, let's assume he had the presence of mind that once the police presence was known, that he did the right things too. But in any event, when you see a story like this, obviously your mind races because there's so many variables. Any one thing that happened differently could have resulted in one or more people being killed. I'm wondering if the guy that was so mad, who had the knife on the ground, made some sort of aggressive movement even after he was disarmed. Would he have been shot? He can't, at that point, if he's disarmed, he's laying on the ground, wrestling around with somebody, he's not in the act of threatening somebody with great bodily harm or death. To shoot him would be very disproportional, I think, under that scenario. And then all of a sudden the good Samaritan's looking at a serious crime.

Shawn Vincent: Sure. And we had said before, that maybe not in every scenario, but in most scenarios, you'd be justified in the display, the defensive display of the weapon if you would have been legally justified to use the weapon. Right?

Don West: Yes.

Shawn Vincent: So if you were justified in shooting and killing, then you're certainly justified and defenseive display. And what we're looking at here is once this guy's disarmed, he doesn't have the knife anymore and you just have two guys in a fistfight, are you allowed to shoot somebody to break up a fist fight? Is the question. And the answer is no, in most cases, right?

Don West: I agree. Yes.

Shawn Vincent: And then if you're not justified in shooting them to break up the fight, then it becomes a lot murkier about whether you're justified in the offensive display. So there's that legal risk.

Don West: MSo you've got a situation here where if you really wanted to drill into it and even break it down frame by frame, there are moments, I think, where the Good Samaritan has some legal risk, frankly. But we're also given, assuming it's exactly as it was described, that's where the law enforcement and prosecutorial discretion come in. That's something that Andrew Branca talks about is those kinds of cases, you probably will get the benefit of the doubt from the prosecution or from law enforcement. But you don't have to. If you have legal exposure, you can be prosecuted for it. And while many prosecutions that technically could go forward don't, because of the good judgment and the good sense of law enforcement and the State Attorney or the DA, seeing that this isn't the kind of crime that should be prosecuted, nonetheless, there are many gray area cases where someone gets charged. Or there's a couple of additional facts that cast some sort of shadow on it that tips the-

Shawn Vincent: Well, here's another case where a gun comes out after a fight. We're going to go to ... This is a dance competition. It's at a high school gym. It's not hosted by the high school. It's another organization that's hosting it. But let's just say there's eight, nine, different troops of young women, girls who are in dance troupes and they're competing here. And the winners of the dance competition get announced. Some people obviously feel that they were jilted and the argument ensues. A fight breaks out. And then at one point you see cell phone picture, a woman pulls out a gun. And then we find out even later that that turns out another woman pulled out a gun in this situation. And the one they knew who it was, she got arrested and charged. This is the one where they had the simple assault charge amongst others, and then they're looking for who this other woman was who brought out a gun. So here you got a fight going on. Now the gun's introduced and there's no question that anyone here's a Good Samaritan. They're looking to criminally prosecute people.

Don West: So this is in what? A gymnasium at a school. Even though it's a private event, it's a at a school facility.

Shawn Vincent: That's right.

Don West: I got the sense there were hundreds of people there of all ages, including a lot of the kids that were participating in this competition, and their parents.

Shawn Vincent: That's right. I think about those wooden bleachers that you pullout in high school gyms, those seemed pretty filled with people.

Don West: Yeah, and I guess I shake my head in disbelief, to think that someone would ... Well, I'm going to assume that it wasn't illegal to possess the gun there. I'm probably not right if more facts were known. I'm going to assume that even though it was a school where guns would likely be prohibited otherwise, that because it was a private event. . .

Shawn Vincent: She was charged with brandishing, simple assault, and carrying a firearm on school grounds. So. . .

Don West: Well, then they've already made that decision that there was no exemption for that because it was a privately held event, rather than the school being used as a school. So the audacity to take a gun there, and then the circumstances under which it was displayed are shocking to me because, as I read the report, all of this was happening because they disagreed with the outcome of the competition.

Shawn Vincent: Right.

Don West: And if that wasn't enough, another woman has a gun and it comes out, and there's video of her holding it. That's the one the individual that hasn't been identified yet.

Shawn Vincent: That's right.

Don West: Oh, I'm just shaking my head. I can't. It's scary isn't it? If you think that people exercise that kind of judgment, that they ... We talk about being a responsible gun owner. First and foremost, if you're going to assume the incredible, awesome responsibility of carrying a firearm, that that carries with it so much more than what life demands of you otherwise. You can be a hothead, you can be a jerk, you can get in people's faces and wag your finger, and you can tell them how whatever the low-life they are, and how stupid they are, and you can pick fights if you want, as long as you don't break the law. But to introduce firearm into a children's event like that shows such irresponsibility and such bad judgment that, well, frankly, I hope all of the individuals responsible and do get prosecuted. What an inherently reckless and dangerous thing to do in a public event like that full of kids? That's shocking.

Shawn Vincent: And since that's so clear, I wanted to show that as a contrast to the 'good Samaritan' who pulled out a gun to stop a fight. And I guess the question is, are you trying to stop the fight or are you escalating the fight? And I think that's a sense here, that these women who pulled out the gun seemed to be escalating as opposed to getting a fight to breakup. And I guess a gun is probably a bad way to break up a fight anyway. Here's a. . .

Don West: It's a terrible way to win an argument, I can tell you that. And that's probably how it started. That there was an argument over who the winner should have been, and that got more and more heated. And then pretty soon somebody threatened to kick somebody else's butt, and then pretty soon it got to the point where, "Oh yeah, really?" And then a gun comes out. And then of course that's as far as you can take it without shooting somebody, right?

Shawn Vincent: That's it. It's there  . .

Don West: And now they believe that they were at risk of being shot. So the response, the way I take it is that ... Then another gun comes out. And I can imagine.

Shawn Vincent: And here's where that goes, right? So we'll talk about another case that you and I have touched on before. But when we talk about brandishing, you can be arrested for it and have real jail time, right? It's a serious offense, but there's a worse consequence to it. So we're going to go to Indiana, right? You'll remember this case because we talked about it years ago. And there's a guy. He's a Indiana firefighter. He owns his home, he's working. He's got a big yard. He's got a fence between his yard and his neighbor's yard. He and his neighbor who sort of was this wacko, crazy guy ... He reminds me of ... What's Laura Dern's father, that actor?

Don West: Bruce?

Shawn Vincent: Bruce Dern, if he's one of his roles where his hair's all crazy and he's wild-eyed and crazy, this is what this guy reminds me of, right? So he's got a Bruce Dern character as his neighbor. And they'd gotten in this fight before, that involved bite marks on each other. This is the kind of animosity these guys have towards each other. So they're at it again. They're yelling at each other over the fence. There's a security camera that picks up this. So the, the Bruce Dern character, then, you can see him on his riding mower tractor go by the frame of the camera, and he pulls out a revolver that turns out to be his live-in girlfriend’s revolver. And he kind of jangles it in the air. Like, "Hey, I got a gun. How about that?"

Shawn Vincent: Well, apparently, the firefighter, he kept his gun on him while he was doing yard work. He's got a, I think, a Glock with 16 rounds in the magazine. So he pulls out and he just unloads the whole thing out of it. He shoots his neighbor four times, he falls behind the tractor and then the tractor absorbs the other 12 bullets. Miraculously, the guy didn't die, actually stood up, flipped him off and walked back into his living room where he collapsed. And I think he ended up surviving that episode. And the prosecutor looked at this case and he said that it was justifiable self-defense, although he didn't want to be seen as validating either the men's behavior.

Shawn Vincent: But I guess I say this in all to say that some brandishing best case scenario, you get arrested for it. Worst case scenario, you get shot and killed for it. And we've seen cases where you introduce a gun, you've just given somebody else a reasonable fear of imminent death or great bodily harm. Would you agree with that?

Don West: You put a little history behind it as these guys did, even if the history becomes an exchange of angry words and gestures and those sorts of things during the onslaught of a road rage incident of some sort, and pretty soon the reason you're not dead is because you were lucky that the wounds weren't fatal, and that could go either way. As soon as people start shooting at each other with a gun, the fact that no one actually dies is just luck, as opposed to any plan. We know, we've seen how many cases where one shot results in death, and four or five doesn't. But that's not to say that anything good came out of the one where he didn't die other than the fact that he literally didn't die.

Shawn Vincent: You just don't know.

Don West: And, yeah, in many instances, everyone's surprised. That's a case where it's what? One upmanship. We see that in varying degrees too, especially with these ongoing disputes. The violence starts with arguments over the fence and then escalates, sometimes, as in this case, with some prior physical contact. Wasn't there even a knife introduced at one point?

Shawn Vincent: Yeah, I think that's right.

Don West: And like you said, all that stuff. So I suppose when the prosecutor looks at this, if they looked at it fairly objectively, they would say, "Well, the guy on the lawnmower is the one who introduced the firearm into it. It had been an escalating ongoing sequence. And as soon as he showed he had the gun, it's fair to believe that he intended to use it. Why wouldn't he under those circumstances?" So the fear was reasonable. If the fear of great bodily harm or death was viewed as reasonable under the circumstances, then the use of deadly force in response becomes reasonable. And so long as more shots aren't fired than necessary, and in this instance maybe there were, but they weren't necessarily ones that hit their mark. . .

Shawn Vincent: That's just it. I think the first four shots may have been justified. The last 12 shots, if he had actually killed his neighbor with those shots, lying on the ground, we would have a whole different story here, wouldn't we?

Don West: Oh, sure. Yes. Without question. Crazy stuff, huh?

Shawn Vincent: It's crazy stuff. And we look at this too ... Yeah. I'm trying to find, what's our lesson, because I feel we've said it before in this segment that our listeners are responsible gun owners. They've come to CCW Safe because they have ... You don't buy insurance, right? If you're irresponsible. The thing you need to do to protect yourself is a responsible thing to do. And we're looking at some really irresponsible uses of firearms in this case. And I don't think that our members are going to be in these situations, but there's something to be learned from them, which is, I think, how quickly ... Maybe the lesson is just how quickly things can escalate, and the temptation of when you're armed. I think the lesson, especially when it comes to the brandishing, is that if you're not justified in using deadly force, you're not justified in showing the gun.

Don West: And that follows immediately by, once you show a gun, there is a very predictable response. Either it ends it, and the other person goes away, or they escalate it because . . .

Shawn Vincent: And now you're in a gunfight.

Don West: And now it's on.

Shawn Vincent: And here's the other lesson that I think I'd like to draw from this, and we'll go to the good Samaritan case on this, and the legal risks you take when you draw your weapon. And that's this idea of all these variables you don't know about, right? We talked time and time again about whether a self-defense use of force incident is considered justified or not really rests on a lot of these nuances. Right? And when we were talking, we talked about a case where a guy shot some intruders who were trying to get into his house through his front door, which we generally not recommend shooting people you can't see who don't pose an imminent threat. But in that case, he knew who they were. He knew that they weren't there for good. There were two of them that are going to try to break into his house, and he was justified.

Shawn Vincent: But you said something interesting then, which is if you're going to use force to prevent a forcible felony, right? Use your firearm prevent a forcible felony, then you have to be right. Right. And you have to be certain because if you're wrong about any of the details, then you could be in real legal jeopardy there. And if this good Samaritan were wrong about the circumstances, he could have found himself in legal jeopardy there.

Don West: I think that's especially true when you are employing the defense of others, when you sort of step into the shoes of the other person. And there are certain scenarios that are clear. I remember a case in Florida where a good Samaritan came upon a deputy sheriff being brutally beaten by someone, another motorist, I guess. And he had a gun. He got out of his car, had the gun, and the officer said to him, "Shoot him. Shoot him." And of course there was no mistake at that point who the victim was, who the attacker was, and that in many regards, all of that ambiguity of what was going on was resolved. And I think he shot the guy. I believe that he did and certainly was not being prosecuted.

Don West: So that kind of scenario made it especially clear, unless you have something that you've watched unfold from the beginning, there's certainly going to be subject to a misinterpreting what's going on. And that just makes you at greater risk. At the same time, this guy was brave enough to stop what he believed to be a very dangerous situation for somebody, because the other guy had a knife and was swinging at him. So to the extent that he was able to stop somebody from getting hurt, he was gutsy enough to do it. Fortunately, it turned out well for everybody.

Shawn Vincent: And he had the judgment to not fire. And it would've been a different scenario if he had actually fired the weapon and hurt or killed somebody with it.

Don West: Yeah. And thankfully he didn't. And thankfully he didn't need to. That that display was enough to make them stop. Had he displayed the gun, and the attack continued, then he would have had another set of considerations, and ultimately another decision to make, and thankfully that didn't happen.

Shawn Vincent: Well, here's something that I can count on, is that in the next couple of weeks, there's going to be at least five more self-defense stories that pop up in the news. And we're always going to have something to talk about. But I think I've been really deeply influenced by my conversations with Bob O'Connor, the retired veteran career homicide detective that we both know. And he talks about judgment and mindset. And when we go through even some of these ridiculous cases like these women pulling out the gun at the school dance competition, I think just going through them and thinking about them in a critical way is a way to build that mindset, right? Because we don't know as concealed carriers, what circumstance we're going to find ourselves in when we have to make a life and death situation, if that ever happens. We're not going to know all these nuances, but I think the only way to be prepared for it is to have thought critically about the types of situations that can and do occur, and have that mindset going into it.

Don West: I think that's very, very well said. A terrific observation, and I encourage our listeners to check out some of the work that Bob ... Some of the written work that Bob has done, submitted to CCW Safe. It's been posted, and the podcast that you did with him. I don't think it's been . . .

Shawn Vincent: Yeah, by the time this one's released, that one will be up, so people can go back and hear that. We had a great conversation, not just about mindset, but also about you and his involvement in the George Zimmerman case.

Don West: Yeah. Bob was the captain at the Sanford Police Department when the incident took place. Shawn, you said something about the mindset, but more importantly to me what caught my attention is, I think you were saying we really don't know how we might react in those situations, because we've either never been in them or never been in them with a gun. And we've never really been tried and tested, in terms of the triggers that we all have.

Shawn Vincent: Sure. Not that trigger on the gun, but the triggers for our temper, or that spark our emotions.

Don West: Yeah. That set us off, that make us crazy in any given situation. So thinking about that stuff, visualizing that stuff, hearing the bad things and good things that have come out of some of these stories, and I think helps us better understand how we might react and force us to think about it. Let me just add that depending on where you are, and where you get your concealed carry permit, there may be as little as only a couple of hours of training, maybe no live firing. And that, I think CCW Safe has in mind that no matter how much training you had to get the concealed carry permit, it's not enough. It's not enough to prepare yourself for these kinds of things.

Don West: So the training is an ongoing process. The act of training with the operation of the firearm and the act of training with the strategies and tactics involved, and then of course, as we've talked about before, understanding the legal parameters of these. And frankly, we do some of this stuff because we want people to learn from other people's mistakes. And I think that's possible. I know I have already, just by talking to you about these things, I've looked at scenarios differently than I might have otherwise. And really focused on some of the legal boundaries, as Andrew Branca talks about it, rather than the emotional aspect of it.

Shawn Vincent: Yeah. Well, I've ... I think we do this right, then people go into scary situations with a better mindset, more prepared, and we might just save a life from being needlessly taken, and save a solid citizen, and a responsible gun owner from facing maybe an unjust and life changing prosecution. That's the mission.

Don West: Agreed.

Shawn Vincent: Well Don, I really enjoyed it and we'll talk again real soon.

Don West: That's great. Thanks Shawn. I enjoyed it as well, and looking forward to our next get together. Take care.

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