North Florida: A man carrying a gun verbally upbraids an 18-year-old for wearing baggy pants “gangsta style.” The young man takes offense at this and physically pushes the man who insulted him. The man draws his gun and shoots the teen. If he said to you that he perceived himself to be under physical attack, feared for his life and fired in self-defense, what would you think of his claim?
CASE ONE: Nobody bought it. In November of 2008, the man who pulled the trigger accepted a plea bargain in which he pled guilty to Aggravated Battery with a Deadly Weapon. Judge Michael Weatherby ordered that he serve at least a decade of a 12-year sentence before being eligible for early release. The man is 55 years old.
How many mistakes did this now-incarcerated felon make, transforming himself from a free citizen to a convicted criminal in a prison cell? Well, certainly, more than one.
First, the law generally allows only equal force to be used in self-defense. Even if the person pushing us is younger and/or stronger and/or more able-bodied than yourself, a mere shove is not the sort of force that’s likely to cause death or great bodily harm. It does not justify shooting the man who did the pushing.
Second, a self-defense plea is flawed if the person pleading it provoked the violence in question. In this case, apparently, the triers of the facts saw the defendant’s mocking of the young man to be provocation. When he “started the ball rolling” with his unnecessary remark, they felt that he lost his claim to innocence.
The courts tend to hold armed people to what the law calls a “higher standard of care.” The higher standard of care concept is the law’s way of saying, “You of all people should have known better than that.” In other words, being armed, we know that a deadly weapon is present, and therefore we are expected to realize that any argument we provoke has the potential of turning deadly. Therefore, we are expected to act with greater than normal caution and responsibility, in matters such as avoiding provocative remarks or acts that can start fights.
The defendant who got the 12 years in Case One either didn’t know that, or chose to act in a way that failed to live up to that higher standard of care. He seems to have not known or cared about getting a carry permit either. The November 21, 2008 report in the Jacksonville Times-Union stated, “As part of the plea agreement, prosecutors dropped a charge of carrying a concealed firearm against (him).”
Flight Equals Guilt
CASE TWO: An armed citizen in in Massachusetts actually did have a concealed carry permit. And in my view, he committed an act of heroism.
He left a bar, sober, after confronting a man, who he knew to be a violent local bully, began forcing his attentions on a woman who was also his acquaintance. Thinking the matter over, he went to the parking lot and was driving away when he saw something horrifying on the street. The bully had caught up with the woman on the sidewalk and was strangling her.
The citizen pulled over, drew his gun and ordered the man away from her. Instead of surrendering, however, the assailant shouted a threat and lunged at him, hands reaching for his gun. Already afraid of the man, knowing that he couldn’t best him hand to hand, and reasonably believing that the attacker was going to take his gun and shoot both him and the female victim, he fired one shot.
The assailant fell instantly; hit with a full metal jacket .40 round from a Beretta 96FS pistol. In panic, the citizen who had fired holstered the Beretta that had saved his life, gathered the hysterical victim into his car and drove away. When he got home, he called his father, a retired cop. His father told him he had to go to the authorities.
He did but it was too late. The dying man had been found, and police presumed his assailant must have shot him illegally. The course of the investigation was shaped. The armed citizen was arrested and charged with Murder. A masterful Boston defense attorney (DA), Richard Egbert, and his skillful co-counsel Patricia DeJuneas, disassembled the state’s case item by item and earned a hard-won acquittal.
The young man in question would probably not have gone through this long and expensive ordeal if he had not fled the scene. There used to be a payphone on every corner in much of America, and since cell phones have made that no longer the case, it’s important to always have one of those cell phones with you. The defendant in Case Two did not.
It is absolutely critical that you, the armed citizen who had to unlimber a firearm, be the one to call in the incident. It can set the whole tone of the investigation. The criminal justice system is geared on the concept that the complainant was the victim, and the person complained about is the perpetrator. In this case, that didn’t happen and it cost the citizen big-time.
Another lesson is contained in this case. Remember that the round he used was full metal jacket? The training ammo had apparently been left in the gun after his last practice session because he owned good hollow point ammo in .40 that would have been more suitable for personal defense and for carry in public.
In any case, the bullet struck the assailant in the face and because his head was forward due to his aggressively attacking posture, the projectile’s straight-through course created a wound track that appeared to range downward at autopsy. It exited the back of the neck. The man who was shot survived for several days without regaining consciousness before he died.
During those days, his body had been desperately trying to heal him. Lying prostrate on a hospital bed, his body weight was pressing the neck with the exit wound down against the bedding. All this created, by time of death, a small and puckered wound where the bullet had emerged. However, treating physicians had opened up the entry wound in the face to debride it, that is, to remove dead tissue.
Thus, when he died and went to autopsy, the pathologist found a large wound in the face and a small one in the back, and concluded from this that the small hole must have been the entry wound, or “in-shoot,” and the larger must have been the exit, or “out-shoot.” From this, in turn, the Commonwealth concluded that he must have been shot in the back, and believed the defendant’s story of self-defense could not be true.
DA Egbert called in his own expert testimony on gunshot wounds and also cross-examined the physicians who had treated the gunshot “victim.” He had been Life-Flighted to Boston, where emergency trauma surgeons have lots of experience with GSWs (gunshot wounds). Those who treated the late assailant testified that when the wounds were fresh, they determined entry in front and exit in rear. The defendant was fortunate, not every shooting happens in environments where treating physicians will have enough experience with GSWs to determine entry from exit, as these did.
The big lesson of Case Two, however, is: “Flight Equals Guilt!” It’s an old principle from the English Common Law that is alive and well in modern American jurisprudence, and it holds that the honest man who has done the right thing will stand his ground to explain himself in a case like this, where he has had to use force. However, supposedly, “the guilty flee where no man pursueth” because of a consciousness of guilt and a fear of well-deserved punishment.
Thus, most courts will allow those who are trying to hang you out to dry to argue that if you fled the seen, it can be considered by the triers of the facts as an indication of guilt. And, of course, flight is considered a sign of guilt by police and prosecutors during the early stages of the aftermath, long before the trial itself.
The situation may still be dangerous after the shooting, and then, of course, you’ll have to leave but in those rare situations, the facts will be presented in court, and the judge and jury will understand. Should you have to depart the scene in such a rare case, you would be wise to shout as loudly as you can, “Someone call the police! I’m going for the police!” Then head for the nearest police station and be calling in the shooting as soon as you can.
Sloppy Gun Handling
CASE THREE: A tragedy that took place in Norfolk, Virginia, late October of 2008. A Navy reservist, a 53-year-old Petty Officer First Class, was on a military range qualifying with the issue pistol, believed to be a standard M9 Beretta, the functional equivalent of the Model 92F. The October 29, 2008 report stated that the reservist “was shifting his 9mm pistol between hands when it slipped, spun 180 degrees, and fired into his chest.” He died about an hour after sustaining the wound.
No, Beretta 92s don’t go off by themselves. The reporter’s account continued, “…one of the coaches observing the exercise, saw the gun tumble from (the victim’s) grasp during the transfer. ‘Whoa! Whoa! Whoa!’ he shouted. (The victim) lunged for the gun and squeezed, firing a shot through his chest.”
The dead sailor left two adult sons and a widow who said her husband was a gentle, kind, caring man who loved serving his country. He had devoted four full-time years of his life to the Navy, and had been in the Navy reserves since 1990. A sad loss. Let’s look at what we can learn from this tragedy, in hopes that it is not repeated.
The hand-change of a loaded gun can be tricky. It should be practiced extensively with an unloaded pistol before doing it live-fire. Could it be done even with a dummy gun? Certainly, and if you had a revolver or a slick-slide pistol such as the Glock with no manual safety or de-cocking lever, that would probably be the safest of all.
Please don’t take any of this as a slap at the Navy folks involved in the tragedy at Norfolk, nor at Beretta.
CASE FOUR: Very much like Case Three. It was a police range instead of military, it was a cop involved instead of a sailor, she was female instead of male, and it was a different gun.
What was the same was transition from strong hand to weak hand, this time with a department issue Sig Sauer P220 .45ACP. The hammer was cocked from the last strong-hand shot. The shooter fumbled and at least partially dropped the gun, and she grabbed convulsively to catch it. Some part of her hand hit the trigger, now in single-action mode, and the pistol did exactly what it and every other gun is designed to do when the trigger is pressed to the rear with sufficient force. It discharged.
The bullet struck her in the head. It caused severe brain damage. She almost died. From what I’ve heard, she has not yet fully recovered, many years after sustaining the wound. Her loss of function was such that she was medically retired from the job she loved.
Tell you the truth, even de-cocking to the double-action mode with its long, heavy trigger pull may not keep a falling gun from discharging if it is grabbed desperately enough, the way we can expect any person to grab at a firearm that falls suddenly and unexpectedly.
CASE FIVE: The owner (gone now, God rest his soul) of a S&W Model 19 DA revolver was an unimpeachable expert: full-time lawman for many years, senior instructor with his department, several times state champion police combat pistol shooter, and a well-known custom gunsmith on the side, to boot. He had worked on his own carry gun, of course, and I suspect the DA pull was down around 7 or 8 pounds.
He came home from his shift of uniformed patrol and set the loaded service revolver on the mantelpiece prior to changing clothes. Turning away, he saw out of the corner of his eye that the gun was sliding off the mantel. He reflexively lunged for it and grabbed at it, exactly as the Petty Officer First Class who saw the accident in Case Three described that incident.
Even though the hammer was at rest and the gun was in DA mode, a strong man’s hand grabbing at it desperately exerted enough force to discharge the weapon. Fortunately, the muzzle was oriented toward the fireplace, and the bullet stopped there in the brickwork. The lesson that expert taught until his untimely death was, “If the gun is falling, let it fall!”
Beware Of Hair Trigger
If the United States Supreme Court has ever defined exactly the pull-length or pull-weight that constitutes a “hair trigger,” I have not found it. Unfortunately, in almost 30 years as an expert witness in shooting cases, I’ve heard it come up in court so many times that I’ve literally lost count.
The issue of “light trigger pull” as an element of civil or even criminal liability turns out to be one of the hardest things to get across to shooters who haven’t yet had the opportunity (or the pain) of seeing how the justice system actually works. Some folks figure that if something isn’t against the law, it can’t be used against them. It just doesn’t work that way.
You can look in every statute book in the land, and you probably won’t find a law that specifically says, “You can’t bungee-jump off a 100-foot bridge with a 110-foot bungee cord.” Even so, I think we’d all agree that jumping off a 100-foot bridge with a 110-foot bungee cord would be a pretty damn stupid thing to do. And if we encouraged someone to do that, and they got killed or horribly injured doing it, we’d be negligent.
Similarly, you can look in every state law book in the land and not find anything that sets a certain “legal limit” to trigger pulls. However, just because light pulls aren’t “against the law,” doesn’t mean it’s not pretty damn stupid to have one on your carry or home defense gun. To recap for those who came in late, here’s why.
It’s hard for a prosecutor to convince a jury that a good person like you, reading this, would commit cold-blooded, intentional murder. That’s because the typical jury is made up of good people like you who will relate to you and to convince them that you could turn into a murderer, the prosecutor pretty much has to convince them that they could turn into murders. That’s a tough sell.
But if the prosecutor will settle for a manslaughter conviction (and most politically motivated prosecutors will), all the prosecutor has to do is convince them that an ordinary good person like them could be careless enough for just one or two seconds to do something really stupid. Since that’s true of all us humans, it’s an easy sell. That’s why it’s attractive to the rare unscrupulous prosecutor to frame an intentional self-defense shooting as an indefensible, negligent accident. You see, there’s no such thing as a “justifiable accident.”
Something similar happens in civil cases. The plaintiff’s lawyer who is suing you is looking for the deep pockets. The most typical scenario of a shooting by an armed citizen is home defense. You probably don’t have a loose, liquid million bucks laying around that the lawyer can glom if he wins his case but you probably have at least that much in homeowner liability insurance, and the insurance carrier does have the money.
However, the carrier generally only insures against negligence and it is usually exempt under law from paying if you’re found liable for a deliberate act that intentionally harms another person, what is called a “willful tort.” Go ahead and look it up in your own homeowner’s policy. Therefore, just like the prosecutor with an unmeritorious case, the plaintiff’s lawyer with an unmeritorious case will find it to his advantage to go to a “negligence theory,” and claim that you shot the intruder in a careless accident when in fact you shot him intentionally and necessarily in self-defense.
And the route to that unscrupulous goal is made much faster if the justified shooter is unfortunate enough to have shot his attacker with a gun that has a lighter trigger pull than the factory that made it recommends. The factory’s recommended pull weight is what will pass in court for the “prevailing standard of care” and the “common custom and practice.”
These cases have happened so often, both criminal and civil, that police departments throughout the country have long been getting away from guns that can be cocked to even a semblance of a light trigger pull. The single most popular handgun in the US police service by far, is the Glock, which owes much of that popularity to the fact that BATFE long ago ruled the Glock to be a “double-action-only” (DAO) design.
At a Sig Sauer seminar recently, I was told that the most popular of their fire control systems in US police sales today is the DAK (Double Action, Kellerman), a DAO variant that can’t be cocked or modified into a “hair trigger” configuration. Sig Sauer is also pushing hard their new P250 series, another DAO design that’s immune to real hair trigger problems or false accusations of same.
People who have not yet been up against the more unscrupulous members of America’s legal fraternity will tell you, “Trigger pull weight only matters if you shoot him by accident.” They’re wrong. It will matter if the other side concocts a false theory that you shot the attacker by accident. You see, in this country, each side’s “theory of the case” is given equal standing in front of the jury until one side has proven the other wrong.
CASE SIX: Recently, a senior citizen faced a home invader who was breaking into his house with a pickaxe. He cocked the hammer of his .357 revolver. He later said, “the pistol went off. I had it cocked. It had a hair trigger and I touched it and it went off.” His assailant, hit in the leg, turned and fled.
The cops and prosecutors where it happened, handled it as I think they should have. They had no problem with the citizen and they arrested the lifelong criminal he had shot. So far, so good. However that “It had a hair trigger and I touched it and went off” thing may yet come back to haunt the homeowner in a civil lawsuit.
I hope it doesn’t, and if the home invader’s lawyer called me and asked me to testify, I’d tell him that I would have shot his client intentionally when the homeowner did so by accident. The point is, a whole lot of unlucky folks have been charged or sued in just such cases, and the hair trigger is not a “weapon” you want to put into the hands of the “opponent” who will be in a position to bring a legal case against you.
North Florida: A man carrying a gun verbally upbraids an 18-year-old for wearing baggy…
by Combat Handguns / Jun 19, 2009