Don't slap around customers in Dallas

[Skribs]

I’ve been around some drunks that would act fine one minute, then just snap. If that’s the case, it could be difficult to avoid confrontation. If the guy was obviously drunk/high, I’d like to think I could have avoided him or if I couldn’t, just KO’ed him with a canned-good from the shelf. I’d expect to see (poor quality) security camera footage some time in the future.

This would put you at greater risk for getting hurt and would still potentially kill the assailant. Personally, I'd rather use something that will stop the threat immediately. If you choose to go under the influence of alcohol/drugs, I consider you responsible for anything that happens under their effects.

The way this article reads, it was a justified shooting.

 

[MtnCreek]

Right or wrong, I would probably be better off in court if the prosecution held up a dented can of pork-n-beans rather than a G19. Knocking out a drunk is something I haven't had to do in about 15yrs, but I'd like to think I still could. All this is with whatever assumptions I'm making and whatever assumptions you're making cause I can tell you for certain that I don't know what happened.

 

[Kleanbore]

Posted by Skribs: The way this article reads, it was a justified shooting.

I see nothing in that article or any of the other reports I have been able to find that would indicate (1) that it was immediately necessary for the shooter to engage or remain engaged; (2) that the shooter had reason to believe that the deceased had been armed; or (3) that there had been a disparity of force.

Fortunately, those who decide will have more than news reports upon which to base their findings.

 

[Girodin]

He was genuinely a threat to everyone around him.

Perhaps but again there is a crucial distinction concerning what type of threat he was. If he was not a threat that put them in reasonable fear of death or serious bodily harm then lethal force is not justified.

'd call it a good shoot from a legal perspective, and I don't think he's going to have any legal trouble.

And what are you basing your legal opinion on exactly? Let us assume that the news report is accurate (a pretty big assumption). There are not enough facts there to know. Further what is your legal training and experience? What is your legal experience in the jurisdiction in question?

Do I think the level of force necessarily needed to be escalated to lethal? Not necessarily, but this depends on the types of blows he was throwing. If it was simply slaps, that's one thing. But he chased the customer out of the store and continued fighting with him, which leads me to believe it was more than slaps at that point, and continued aggression is worthy of lethal force.

Again not necessarily. You generally speaking cannot shoot someone in order to avoid getting beat up a little.

Of course the obvious difficulty is in knowing whether the person intends to beat you up a little or beat you to death and when a reasonable person would be in fear of the latter.

I think threads like this are dangerous. You have folks with a bias in favor of finding shootings justified, coming out and quickly asserting a shooting is justified despite there being insufficient facts to even know. Furthermore, they do so without making any reference or analysis of how the law applies to the facts. The danger is that it could leave a non discerning reader with a misconception of the law concerning use of deadly force.

I think that before anyone should say a shooting is justified, he or she should outline what they believe the factual basis of the incident to be, cite to the relevant law in the jurisdiction and then apply the law to the facts. I realize that is not going to happen because many of those who feel the needed to make an absolute declaration about it are not capable or willing to do so.

Simply jumping to conclusions about what occurred and making a definitive statement about whether a shooting was justified with insufficient facts or insufficient legal understanding is foolish and irresponsible whether it is done by pro gun folks with an agenda or anti gun folks with theirs, or race baiters, or anyone else with an agenda.

 

[Fred Fuller]

The deceased might not have been armed, but the shooter obviously was.

How far is it from a legally armed citizen going about his business in an inoffensive manner, to an assailant armed with what was a second ago the legally armed citizen's sidearm? IMHO that's a primary consideration in any case like this one, far more than the level of violence in the physical assault. Some people carry guns because they aren't able to fight physically, and they can't really run all that well either.

I can't speak to what the shooter in this specific case should or shouldn't have done, because I don't know the totality of the circumstances. But there are other considerations in legitimate self defense than the level of violence utilized by the perpetrator of an assault. Agreed, no one should legitimately be able to use deadly force to repel a mere annoyance. But there are other considerations involved, and every case has to be (and will be) judged on its own merits.

A major consideration for all of us as armed citizens is to ALWAYS be able to clearly understand and verbalize precisely what we perceived to be at stake, and to articulate why we did whatever it was we did in any situation.

 

[Deltaboy1984]

I agree Mr. Fuller I am waiting to see what comes out of the DA's Office and wither or not it will get refered to a GJ which is the normal process for any private citizen shooting in TX.

IMO it is sad the shooter didn't have other options like OC or a cane. But I was in his shoes and only had a gun I would have with 98% certainity that I would have shot the nut too.

 

[EvilGenius]

I agree Mr. Fuller I am waiting to see what comes out of the DA's Office and wither or not it will get refered to a GJ which is the normal process for any private citizen shooting in TX.

IMO it is sad the shooter didn't have other options like OC or a cane. But I was in his shoes and only had a gun I would have with 98% certainity that I would have shot the nut too.

I agree it's sad that he didn't have other options, but i do think people often put a little too much faith in things like OC spray. Especially against someone who's drunk or high. A cane can be effective in good hands, but you're talking about being within contact distance of someone who's unpredictable and has already shown violent tendencies. Also, depending on the state and the situation, that cane can still be considered a deadly weapon. More easily than the canned beans.

If it was an addition to his inventory, it could definitely been a better initial option. But it just irks me to hear about folks who are going into a bad area (not saying anyone here is saying that) and choose pepper/OC spray over more reliable/effective means (especially when I know some of them are CHL holders and have good training).

 

[Girodin]

to an assailant armed with what was a second ago the legally armed citizen's sidearm? IMHO that's a primary consideration in any case like this one

Did the assailant know the person had a gun? How easily could the assailant have accessed it? What reason, if any, did the shooter have to believe the assailant was going to imminently access and use the shooter's gun? IMHO just the fact that I have a gun with me alone is not going to get me very far in terms of making an otherwise unjustifiable shoot a justified one. You need to meet the same standard of objectively reasonable fear of imminent deadly force or serious bodily harm. While it is true the assailant getting the gun would most likely amount to that, or even the assailant going for the gun, IMHO just the fact that you have it concealed on your person is not going to be enough. Imminence of the threat is an import element in making the use of force justifiable. I just don't really think that the argument "I had a concealed gun, that the assailant hypothetically might have gotten access to, if he were to discover I had it." is going to get you real far I don't know that it is going to help much in the screening phase and, personally, I would not want to make that argument to a jury.

Lastly, if you having the gun is what makes the person a threat than you likely will need to make a much stronger showing that you could not retreat etc.

I would be very interested in seeing any documentation of actual cases where that has played out to the contrary.

A major consideration for all of us as armed citizens is to ALWAYS be able to clearly understand and verbalize precisely what we perceived to be at stake, and to articulate why we did whatever it was we did in any situation.

This is true on one level. I would of course remind folks that the standard for use of force is an objective not a subjective one. Thus what you perceive in any given situation is in certain respects not as important as what a reasonable person in the same circumstances would have perceived. You might legitimately be subjectively in fear of your life and be able to articulate that with surgical precision. However, if it fails the objective standard then it is not a justified shooting. This is why I believe it is important to get a reasonably firm grasp of what other people (including those who don't carry, those who are non gun owners, etc) tend to believe is a reasonable course of action. Unfortunately most folks, in my experience, have really warped ideas about violence and tend to be pretty unsympathetic to cases where one person has a gun and the other person is threatening with less than a weapon like a gun or a knife. That is why there are so many tough call unarmed assailant vs shooter cases wind up charges filed (see e.g. Harold Fish, Hickey, and of course Zimmerman)

 

[Skribs]

IMHO, people can die from being beaten, even if the assailant doesn't have a weapon. If someone is in the process of physically assaulting me, even if he is unarmed, I would be in fear of life or serious bodily injury, and defend myself with whatever tools I had available until the attack stopped. Unless I could get to a pause in the violence where I could use the gun as a deterrent to convince the attacker to stop, I will use it to get to that point.

I am a very nonconfrontational person, and if someone gets in a fistfight with me, it is because they specifically chose to attack me.

Kleanbore, the way I read it was that the drunk had assaulted the shooter inside the store and continued the assault outside.

 

[Girodin]

IMHO, people can die from being beaten, even if the assailant doesn't have a weapon.

Absolutely. it is actually very easy to find lots of cases of that happening.

If someone is in the process of physically assaulting me, even if he is unarmed, I would be in fear of life or serious bodily injury,

The question is would a hypothetical reasonable person. Again it is an objective not subjective standard. Remember the person answering that may not be a reasonable person them self (just think how many times you have heard someone ask why the police didn't just shoot that knife wielding guy in the leg, or hit him with their clubs, after all he just had a knife). In armed vs unarmed it is an inherently tough question. It also doesn't help that the people who get to answer it A) weren't really in the situation and may have never been in any situation even remotely similar, B) have all the time in the world to decide when the person who acted had perhaps a fraction of a second.

I would . . . defend myself with whatever tools I had available until the attack stopped.

A number of people have done just that and later found themselves in court, broke from legal fees and even in prison. That may beat being dead though.

I'm very pro right to self defense. However, I have enough experience in the legal system to not be naive about how things can turn out.

 

[hogshead]

When you lay hands on a man that is assault? When you are assaulted you have the right to stand your ground .Senate Bill 378, made effective September 1, 2007, also "abolishes the duty to retreat if the defendant can show he: (1) had a right to be present at the location where deadly force was used; (2) did not provoke the person against whom deadly force was used; and (3) was not engaged in criminal activity at the time deadly force was used Seems pretty simple to me. Of course I am not a lawyer .

 

[Kleanbore]

Posted by hogshead: When you lay hands on a man that is assault? When you are assaulted you have the right to stand your ground .Senate Bill 378, made effective September 1, 2007, also "abolishes the duty to retreat if the defendant can show he: (1) had a right to be present at the location where deadly force was used; (2) did not provoke the person against whom deadly force was used; and (3) was not engaged in criminal activity at the time deadly force was used Seems pretty simple to me. Of course I am not a lawyer .

You overlooked the most important part.

The actor must reaonably believe that it had been necessary for him to do so to protect against the use or attempted use of deadly force, or to prevent the imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

That's already been discussed here.

If there were no strong indication that the guy had been armed or no clear disparity of force, the above conditions were not met.

 

[Deltaboy1984]

No News so far from the DA.

 

[Averageman]

The actor must reaonably believe that it had been necessary for him to do so to protect against the use or attempted use of deadly force, or to prevent the imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Well I can only suppose that after being assaulted and retreating to safety the shooter must have thought that he was in danger of losing his life.
When I was a young man I was a amateur boxer, I can assure you that not all punches are created equal.
Someone who has a bit of skill (impared or not) can kill you with repeated punches. Until you have stood in front of a unrinal and wathed your blood go down the drain, you are pretty clueless as to what damage can occur.
I suggest that if I walk away after punching me, I'm not going to be forgiving and welcoming the second punch.
At 51, I may not be the man I used to be, but I am the man I want to be. I am not looking for a fight, and I will walk away, but go ahead and push and you will have pushed too far.

If I fear for my life you better fear my reaction.

 

[Girodin]

Someone who has a bit of skill (impared or not) can kill you with repeated punches. Until you have stood in front of a unrinal and wathed your blood go down the drain, you are pretty clueless as to what damage can occur.

Lest you think I don't know about the damage that punches can do. I worked at a boxing/Muay Thai gym to put myself through school, I trained amateur and pros fighters. I fought amateur fights when I was younger. I have worked out with and worked with big name pros. I have reffed, judged, and cornered, I don't even know how, many kickboxing and MMA fights. I have no illusion about the amount of damage one unarmed person can do to another, or how quickly it can be done.

That said, I also graduated magna cum laude from a top tier law school and have actually worked in a prosecutors office, and have even screened cases.

I know that most people screening cases, while they (to varying degrees) understand the law, may not really understand violence or what it is like to be in a violent situation. This is probably doubly true for many jurors and they are even less likely to really understand the law or make sound decisions.

I also understand that the standard isn't whether I am afraid for my life. It is whether the mythical reasonable person would be in the same circumstances. The people deciding if it met that standard very likely will not share my experience and background. They may not even share my general attitude towards, guns, carrying a gun or self defense. We changed DAs a while back and it has been interesting to see how differently the new one has treated some claimed self defense shooting cases.

Looking at things from a tactical view point and legal view point are two very different things. Your actions need to be sound in both respects.

 

[Kleanbore]

Posted by Averageman: Well I can only suppose that after being assaulted and retreating to safety the shooter must have thought that he was in danger of losing his life.

I'm not sure that I would assume that.

He may well assert that, but it may well prove insufficient.

Someone who has a bit of skill (impared or not) can kill you with repeated punches. .... I suggest that if I walk away after punching me, I'm not going to be forgiving and welcoming the second punch.

Before anyone thinks that an affirmative defense involving the use of deadly force against an unarmed assailant will be readily accepted because punches can kill, it would be a good idea to learn the underlying meaning of disparity of force. This is worth bookmarking and reading.

Some relevant excerpts:

Ability means that the attacker possessed a weapon capable of causing death or grievous bodily harm. The object in question could be a make-shift weapon, like a beer bottle, a baseball bat, pool cue or even folding chair, if used to inflict a blow. Generally speaking, charges brought against someone for defending themselves or another innocent person rarely center on whether or not the attacker possessed the ability to cause death or serious injury, with a couple of glaring exceptions.

The first exception is when the attacker you shoot does not have a weapon or an object capable of being used to inflict serious bodily injury, but you thought he did. ...

The second exception, and the one that lands people in jail time and time again, crops up when the defender uses deadly force against an unarmed attacker, or even to fend off multiple unarmed attackers. This happens with surprising frequency, and more often than not, the defender ends up paying a high price legally. The issue involved is called “disparity of force,” and it is a critical one.

When a legitimate self-defense shooting ends up in court, many times the civil litigation or criminal prosecution hinges on the question of disparity of force. After all, if a prosecutor knows the attacker had a deadly weapon and was in fact attacking, he is likely not going to prosecute the self-defense shooter. But, what happens when the defender is being stomped to death, choked to death, or oth- erwise believes a deadly force attack is imminent or underway? And, what if that defender shoots one or more of his assailants, but they claim that they were only beating him up, not trying to severely injure or kill him?

Legally speaking, likely it was lawful for the defender to use force in self defense, but in court the claim is made that he or she used excessive force. Under these circumstances, the defendant will need to show... that they had a reasonable belief that the attackers possessed the ability to cause death or serious physical injury.

One would likely assume that if a defender had been attacked by three unarmed persons, had tried to escape in a stand your ground state, and was being beaten into submission, the use of deadly force would be clearly justified. Read this sobering account before making such an assumption.

 

[Skribs]

Looking at things from a tactical view point and legal view point are two very different things. Your actions need to be sound in both respects.

While this is true, I think this is the case where you can legitimately say "I'd rather be judged by 12 than carried by 6." The other cases (usually regarding target identification), not so much.

However, my first response wouldn't be to shoot. I would want to bring the gun into play to use as a deterrent. If I was unable to perform an escape or reversal (using wrestling terms here, "escape" simply means breaking the submission hold and resetting positions, but still in the encounter) and get to a point where I could use the weapon as a deterrent, then I would use it to assist in the escape.

 

[MtnCreek]

Something to maybe think about is when the gun comes into play, we’ve just upped the ante. The ‘assaulter’ either quits or we have no choice but to shoot. I’m not disagreeing with you and I’m not saying you shouldn’t draw a firearm, but I do firmly believe that when the gun comes out of it’s holster, you’ll either get compliance or you’ll have to use it.

Edit: I said 'compliance'. That's not the best choice of word. He wouldn't have to comply; just stop attacking, run off, ...

 

[Skribs]

You are correct, Mtn. I am very non-confrontational, and it would take someone with a lot of aggressiveness or criminal intent to attack me and force me into a fight. I do not plan on getting into fights, but I do plan on making it out of them.

 

[Kleanbore]

Posted by Skribs: I think this is the case where you can legitimately say "I'd rather be judged by 12 than carried by 6."

I'm not sure what "legitimately" saying that would mean, but it is very likely that one would be judged by twelve under the law and under jury instructions outlining the rules of self defense....unless, of course, one were to choose to plead guilty without a trial.

However, my first response wouldn't be to shoot. I would want to bring the gun into play to use as a deterrent.

In a couple of states, and Texas happens to be one of them, one may lawfully present a weapon as a deterrent if force is lawfully justified. Not true in most, however.

Even in those jurisdictions, it may not be a good idea. How is another armed citizen to know that you are not committing a criminal act?

 

[j1]

I am really glad that I am not the one who shot him as the prosecutor could easily ask "since the man was unarmed and you had a gun why could you not have shot him in the leg. That would probably have ended his attack without killing him."

 

[MtnCreek]

Or the prosecutor askes why you shot him in the leg. So, you had enough time for trick shots? So, you really didn't have to shoot, you just shot him in the leg so he would leave you alone? or You shot him in the leg because that's just where the bullet went, you had every intention of killing him and now you're worried and trying to make this up.

TJ Hooker is the ony man that shoots for the legs...

 

[Skribs]

Even in those jurisdictions, it may not be a good idea. How is another armed citizen to know that you are not committing a criminal act?

How is it in any situation once you gain the upper hand?

I am really glad that I am not the one who shot him as the prosecutor could easily ask "since the man was unarmed and you had a gun why could you not have shot him in the leg. That would probably have ended his attack without killing him."

1) It wouldn't necessarily stop the attack, especially if the man is intoxicated and barely notices.
2) There are major arteries in the leg that can be severed, causing a rapid death. Same with anywhere on the body. There isn't a "less lethal" place to shoot someone. COM is more likely to stop the attack quickly.

"Shoot to kill" and "shoot to wound" are both not the goal. I shoot to stop the attack. If that means he gets scared off before I pull the trigger, then technically I didn't shoot, but I stopped it.

 

[ClickClickD'oh]

Speaking as a CHL instructor in the Dallas are, and very familiar with the neighborhood in which this shooting took place, it's very likely that the GJ will No Bill this shooting. That's based on my experiences both as a former DPD officer, and instructor and a person who is very in touch with the general attitude of the region towards these types of issues. That means what I'm saying doesn't apply to Philly, Miami, Atlanta or anywhere else.. so huge grains of salt are in order for anyone not in North Texas.

Those of you speaking about the DA, forget about it. Irrelevant. The case is going to the GJ. Now, the DA may walk into the GJ and tell them he has no intent of seeking a conviction, but it's the GJs decision.

Now, why am I saying that this case is very likely to be a No Bill?

1) The North Texas/ DFW Metroplex area is currently very pro-self defense. Anything that even looks like a person may have been set upon unfairly swings public opinion towards the person defending themselves. Remember, this is the town that ran respected reporter Rebecca Aguilar out of town on a rail after she appeared hostile to a man who used lethal force to defend his property. Note as above, other locations don't have the same attitude, even in Texas.

2) Before being shot, the assailant was assaulting multiple persons that he apparently had no history with or prior contact. Even though the GJ doesn't get to hear from defense counsel, it won't be hard to put into their minds that the sort of person that does such a thing is dangerously violent, possibly putting a reasonable person in fear of their lives.

3) More information. I know, I'm cheating now. Witnesses say that after the assailant was shot the first time, he tried to re-engage the person with the gun and was shot again. "Help help, I'm being attacked by a lunatic!" is becoming a strong and stronger defense here.

Note: Again, a large part of this relies on the attitude of the local populace and the people likely to compose a GJ here.

The deciding factor here is likely to be the part where the altercation moved outside and how much of it is on tape. If the tapes show the shooter leaving the store and being pursued before the shooting, opinion and the GJ will sway in his favor. If on the other hand, it shows the assailant leaving the store and the shooter pursing him to shoot him, he's in trouble.

**Disclaimer** There may be evidence we don't know yet that may change my opinion on this matter latter. Such as, if the video shows that the leaving the store part was the white guy going to get his gun from the truck and coming back... he's screwed.

And no, none of the above should be taken as advice to act in the same manner. Every altercation is different and must be acted upon based on the information available to the actors a the time of the shooting. If you ever find yourself telling an investigator, "Well, I though I was okay to shoot him because once Clicky told me a story on the internet..." You're screwed.

 

[Double Naught Spy]

IMHO, people can die from being beaten, even if the assailant doesn't have a weapon.

Absolutely. it is actually very easy to find lots of cases of that happening.

Well, the very first Texas CHL shooting happened in Dallas and was by a guy (Alan or Allen Hale) about to suffer a second round of beating from a large Samoan man who had already broken bones in the shooter's face and partially blinded him in one eye. The beating was significant and wasn't any sort of slapping.

From the information thusfar, I have to agree with Kleanbore if the guy was just slapping people. There isn't anything there to indicate that lethal force was justified at the time of the shooting for slapping. Force would have been justified under Texas law, but not lethal force.

Other versions of the story I have seen indicate that the CHL holder was punched, was followed out of the store by the drunk to continued to attempt to punch him in the head and that is when he drew and fired. If this is correct and the CHL holder was pursued by the man who was directing blows at his head, invoking Hale's incident, I can see where the shooting might be justified. However, in reading various versions, I am not certain this is what happened versus this being what people think happened.

I am really glad that I am not the one who shot him as the prosecutor could easily ask "since the man was unarmed and you had a gun why could you not have shot him in the leg. That would probably have ended his attack without killing him."

While the prosecutor could do this, the legality of shooting him in the leg is the same for shooting him elsewhere. If it was legal to shoot the slapper/pugilist in the leg and wound him, then it was legal to shoot him elsewhere and kill him. Either way, it is lethal force being used.