Assess this recent in-the-news defensive shooting incident (Houston)

[230RN]

The fact that the gun was fake was not known at the time and is immaterial to the moment.

Was the entrance/exit to the restaurant in the left part of the video, the way he was heading when he was shot? That would be strange because all the general exiting was to the right of the screen, according to another full video, opposite the way the robber was heading.

Terry, 230RN

 

[The Night Rider]

This is my uneducated opinion , take it for what it's worth.

1. I saw the complete and (to my knowledge) unedited video on Twitter. The robber comes in and immediately goes to the table to (the robber's) right of the door. Then he robs the people in the other corner by the door, then gets everyone else. Then heads back to the door.

Based on that I assume the robber was leaving when the defender engaged him.

I believe it was reasonable for the defender and everyone else in the restaurant to believe the robber's gun was real.

I'm OK with everything the defender did up to the point where he took the robber's gun then shot him again. Regardless of whether he thought the gun was real or not at that point he had it.

Based on everything that happened after the defender picked up the robber's gun, if I was on the Grand Jury I would have to vote to indict.

If it made it to trial and I was on the jury I'd have to vote guilty of at least 2nd degree murder

 

[Kleanbore]

Jeff, why do you keep asserting as facts things you cannot possibly actually know? "Not heat of the moment." Was his blood pressure suddenly back down to 130/80/75 as he moved up to the "criminal's" head?

Time. The last shot was not fired "in the moment".

We have seen numerous convictions that hinged upon the time interval between shots.

I'm OK with everything the defender did up to the point where he took the robber's gun then shot shot him again

Yeah.

 

[jmorris]

Time. The last shot was not fired "in the moment".

I provided an answer there and it was nothing as simple as "time".

Interested in both arguments, as I can see both sides myself.

 

[JohnKSa]

Interested in both arguments, as I can see both sides.

Scenarios are interesting because they let us see how things play out in the real world, but getting too wrapped up in scenarios and trying to memorize/learn a bunch of them in detail as a way to get a feel for the legalities of deadly force is problematic. There are an infinite number of possible scenarios with an infinite number of ways they can play out. A scenario with two attackers will put very different stresses on the defender and that could easily change what a reasonable person would expect him to be able to understand about what's going on in the spur of the moment. Trying to match up circumstances from a single attacker scenario to a multiple attacker scenario (or vice versa) and draw conclusions based on apparent similarities can lead to serious confusion.

It is much better to learn the basic principles that govern the use of deadly force in self defense and then you can analyze any deadly force scenario as well as think through possible scenarios you would like to prepare for in your own circumstances.

• Only to stop or prevent. The legal use of deadly force is exclusively about stopping or preventing certain types of serious crimes that are called out in the law.
• Never for punishment or revenge. The use of deadly force to punish a criminal who has committed a crime or to take revenge for a crime that has been completed is never legal. The right to punish criminals is reserved to the government and revenge is not legal.
  
• Reasonable belief of imminent or in progress crime. The defender must have a reasonable belief that a crime that justifies the use of deadly force is imminent or in progress and that there is no other reasonable way to deal with it other than deadly force. That doesn't mean the defender has to know all the details of the scenario accurately, just that a reasonable person in their situation would be expected to believe the same things the defender did. A gun may turn out to be a toy, but if there's no reasonable way for the defender to know that then it is reasonable for them to believe it is a gun and act accordingly. This cuts both ways. A defender could theoretically be justified by the circumstances of the situation but might reasonably believe there was no threat. If the defender makes a statement to that effect (e.g. "I didn't think there was really any danger.), that would be legally damaging to what might otherwise be a clear cut case of self-defense.
  
• Intentional. The legal use of deadly force is never an accident. It is always an intentional act. Even if the circumstances of the situation appear to reasonably justify deadly force, if the attacker is injured by accident (i.e. a ricochet from a warning shot), and not by the intentional use of deadly force, that is not legal. If the defender makes a statement indicating that there was no intent to use deadly force, that it was an accident, then it can not be legally justified.
  
• Proportional force. The defender must not use more force than is reasonably necessary to stop/prevent the crime's commission/completion. A guy who is 6'5", 280lbs of solid muscle and fully mobile can't shoot an 80 year old woman in a walker for threatening him with a rolling pin. She may truly mean to kill him, and maybe she could even manage it if she could connect with his head with a solid swing, but she poses no actual threat to him because he can easily avoid/neutralize her attacks without injuring her. Similarly, if an attacker is down and disarmed and no longer poses a threat and a reasonable person in the defender's place would be expected to assess the situation correctly, continuing to shoot the attacker is not justified.
• Justification depends on circumstances which can change. Justification for use of deadly force is not a persistent situation. Justification could be clearly present at one point in a scenario and then, when circumstances change, it might no longer exist. It's a mistake to assume that because using deadly force is clearly justified in a situation that one can go on using deadly force as long as one might desire. If the circumstances change, the justification can go away, and when it does, if a reasonable person would be expected to realize that fact, then continuing to use deadly force past that point would be illegal.

There's one main principle that really helps understand the overall situation.

The provisions that justify deadly force are intended to provide legal protection for people who are left with no option but to use deadly force. We learn them so we don't do the wrong thing, or say the wrong thing , but there's the temptation to start treating them like a recipe. (i.e. For a legal shooting, start with A, B, and C, check for D and E, if F, then do X and voila, there's your delicious pie, ready to eat.) Really the main thing to keep in mind is that the deadly force laws are there to provide a safety net when using deadly force is the only reasonable option.

If you use deadly force only when there's no other reasonable option, then you can reasonably expect the exemptions in the law to keep you from being punished.

If you expect or want more from them than that, you need to realign your perspective.

 

[old lady new shooter]

https://abc13.com/houston-taqueria-...ene-washington-killed-suspect-death/12681554/ Dead guys record.

Note that he was sentenced for aggravated robbery but in fact actually killed someone in the main earlier incident. If he would not have been sentenced on the lesser charge he would have still been in jail and unable to carry out the act which ended up costing him his life.

Separately, the remarks of the children of his murder victim certainly add to the weight of public opinion on the side of the defender.

 

[old lady new shooter]

There’s very much to the perception that he’s leaving! he has a fake gun (no threat there unless he’s going to hit someone in the head with it). The reason he’s leaving is he has the money and he’s looking to get out the door as quickly as possible

It doesn't matter that the gun was fake. It looked like a real gun, so it was completely reasonable for the defender and the other people in the taqueria to be in fear for their lives. And he was pointing it at the guy against the wall to the left of the door.

 

[old lady new shooter]

An unconscious man laying on his belly is not a threat to anyone.

How would the defender know whether the robber was unconscious vs playing possum?

 

[Blue Jays]

Diner in upper-left of screen (wearing black polo shirt) must have felt he was not fast enough to slip out the door and run away. Every other diner was utterly trapped in that situation given the restaurant physical layout.

 

[JohnKSa]

It looked like a real gun, so it was completely reasonable for the defender and the other people in the taqueria to be in fear for their lives.

Correct. The reasonable belief principle applies here. A reasonable person in the place of the victims would believe they were facing an armed robber.

How would the defender know whether the robber was unconscious vs playing possum?

He wouldn't initially, but there are two important factors to consider.

1. After the CCW walked up and shot the guy multiple times at close range and the guy didn't move at all, that's a really good indicator that the guy either isn't conscious, isn't alive, or can't move. Any of those three things mean the guy is not a threat.
2. After the CCW also picked up the guy's gun it's just about impossible to argue that the guy still posed a threat.

Once an attacker is down, not moving and there's no longer a good reason to assume they are armed, it's going to be really difficult to legally justify shooting them in the back of the head at point blank range.

The same principle of reasonable belief applies. If the defense attorney can convince the jury that a reasonable person would consider a person who has been shot multiple times, who is lying on the ground and not moving to still be a threat after they had also been disarmed, then the CCW walks. Might be possible, but it won't be cheap and the odds aren't something that a sane person would want to risk.

Keep in mind that we aren't trying to exonerate the CCW, we're trying to learn lessons. The big lesson here is that it's important to understand when to stop shooting.

 

[Jeff White]

How would the defender know whether the robber was unconscious vs playing possum?

First off, when he shot the armed robber in the head after he was down he was no longer defending anyone.

It doesn’t matter if he was unconscious or playing possum. The threat was over when the shooter fired the last shot. The issue is not if he could be a threat, the issue is WAS he a threat when the last shot was fired. Please tell us what the armed robber was doing at the time the last shot was fired that made him a threat.

 

[Phaedrus/69]

Noteworthy that the shop owner considers the citizen a hero.

That hardly seems noteworthy at all. Lots of people consider Emmett Till's murderers heroes, too. If public adulation is all it takes let's just dispense with courts and let MTV stage reality TV trials.

 

[WTBguns10kOK]

Considering the angle and low quality of the security cam, the suspect's right side is obscured. It's definitely possible the citizen saw something, like the suspect moving his right arm, hence the reason for the last shot. Overall, after seeing the video a few times it really was an exemplary job by the citizen. I'm still seeing some off topic discussion on page 4 specifically, do mods still visit THR? We should keep this thread tightly focused, it's a big one.

 

[Kleanbore]

Overall, after seeing the video a few times it really was an exemplary job by the citizen.

It is a great example of what not to do,

 

[Milt1]

It doesn't matter that the gun was fake. It looked like a real gun, so it was completely reasonable for the defender and the other people in the taqueria to be in fear for their lives. And he was pointing it at the guy against the wall to the left of the door.

You missed the point! My point is not the terror that this perp brings to this eating place, nor is my focus on why he was shot because it's completely understandable. What I'm trying to tell you is, place yourself in the perp's shoes. By that I mean he's gotten the money that he demanded so what more can he do other than leave? You tell me, what more would a perp, that has the money, do other than leave?

 

[jmorris]

No grand jury in their right mind will look for charges on a man who put several shots into a brazen, armed robber--all while in the heat of the moment.

I think the legal terminology is “heat of passion” and would probably be brought up by the defense IF he is charged as a mitigating factor. As it would be hard for any reasonable person to argue the shooting was not provoked by the now dead guy and the State would have to prove the absence of such beyond a reasonable doubt.

That could have been easy depending on what he told law enforcement; however, speaking with lawyers for days before authorities, I imagine the right words were used in describing the event.

 

[unclenunzie]

From a strategy perspective the first shooting action was clear. The rest to me seems driven by the anger both at having to shoot at all, plus finding out the perp was using a look alike gun.

As to what course an armed robber will take after taking the money only speculation can take place. He could kill to eliminate witnesses.

 

[Kleanbore]

No grand jury in their right mind will look for charges on a man who put several shots into a brazen, armed robber--all while in the heat of the moment.

The "heat of passion" does not eliminate guilt--it only comes into play when deciding whether the actor committed murder in the first degree or a lesser crime.

There have been numerous cases in which actors have been convicted, even for first degree murder, for firing one or more too many shots into armed robbers in incidents that would otherwise have ween lawfully justified. Many of the legal analyses of real cases in the Law of Self Defense Blog are real eyeopeners.

 

[jmorris]

The statement given to authorities would be an interesting read.

 

[JohnKSa]

By that I mean he's gotten the money that he demanded so what more can he do other than leave? You tell me, what more would a perp, that has the money, do other than leave?

Eliminate witnesses. Shake down everyone again to see if they were holding out anything. Take phones or jewelry. Decide to try to see if the owners of the restaurant have any additional money. Go back and pick up the bill he left lying on the floor that is visible in the video.

I think that it wouldn't be hard to make a case that a reasonable person in the CCW's place could believe that the robbery was not over at the point where the shooting started.

Where things get really problematic is when the guy walks over to the robber who is lying on the ground and not moving, picks up his gun, then shoots him in the back of the head at point-blank range.

 

[GEM]

Kleanbore is so correct. In some cases, a 1 1/2 sec pause led to a charge based on premeditation.

Also, for a civilian - approaching an opponent is not the best idea. It comes in the heat of the moment but you shouldn't. If the guy is down. cover, retreat, telling others to get away, etc. You might argue that he wanted to recover their money for them, but that's trivial. Maybe not to the poorer folks in the place but approaching is not a good idea in this situation.

If he goes to trial, the last shots are the issue. Can you persuade a jury that there was a reasonable threat? Standing over him and an anchoring shot - hard to justify.

Or playing on a subtext to the jury that it might have been 'legally' wrong but the bad guy 'deserved it'.

Hopefully, the shooter is shutting up and gives no statement that is not crafted by a lawyer skilled in these issues.

 

[Kleanbore]

The statement given to authorities would be an interesting read.

I should hope that no statement has been given by anyone other than a defense attorney, and such statements are usually framed in general terms such as as "my client believed...". The video tells us more.

 

[GEM]

How would the defender know whether the robber was unconscious vs playing possum?

If you have been training, this is exactly why you do not approach the person. You get out of there, you take cover while covering the person from a distance. So he's playing possum, so go in to kill him for sure?

Not good as a practical thought process.

 

[chicharrones]

If you have been training, this is exactly why you do not approach the person. You get out of there, you take cover while covering the person from a distance. So he's playing possum, so go in to kill him for sure?

Not good as a practical thought process.

Getting out of there when you have to step past the robber to leave may present a fear of danger in itself. Kinda like stepping over a freshly shot wild animal.

Sure there probably is a back door, but you can see all the victims heading for the obvious and immediate exit once they have the opportunity to do so.

 

[chicharrones]

You missed the point! My point is not the terror that this perp brings to this eating place, nor is my focus on why he was shot because it's completely understandable. What I'm trying to tell you is, place yourself in the perp's shoes. By that I mean he's gotten the money that he demanded so what more can he do other than leave? You tell me, what more would a perp, that has the money, do other than leave?

I'd guess that you and hardened criminals don't think alike.