An ATM Robbery - Use of Force Training Simulation

A legally armed citizen facing a deadly encounter has a number of challenges to contend with--among them is when to start shooting.

I once had the opportunity to run students through a variety of scenarios on a sophisticated use of force training simulator or FTS over a period of months. The FTS had thirty or so scenarios that replicated events a private citizen might face as they went about their daily business. When conducting use of force training simulations, each student received a scene-setting prebrief and then ran through the scenario individually. Instructors noted the student’s actions for an after-scenario individual debriefings.

I noted very common issue among new students – they often tried to engage the criminal verbally when it was unnecessary, they waited too long draw their defensive firearm, or they waited to engage the threat until the threat actually pointed a firearm at them. In general, new students did not know the Texas use of force law and therefore did not understand when they could/should engage a deadly threat or they dithered due to a lack of confidence in their ability.

Under Texas law we can use deadly force when necessary to protect ourselves or an innocent third person from the imminent use or attempted use of unlawful deadly force or to prevent another's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (see below).

In other words, once it is clear that an assailant is in the process of immediately attempting to use or is using deadly force, or is committing one of these enumerated crimes, an innocent defender can justifiably use lawful force or deadly force. The defender does not need to wait until a firearm is pointed at them to act nor are they legally bound to give warning. The old saying comes to mind: “If you wait to see the muzzle, you will likely see what comes out of it.”

Click on the picture above to see a video of me completing a blind run of one of the FTS scenarios. The lead-up to the scenario was that you and a partner (spouse, friend, child, etc.) pull up to an automated teller machine and your partner exits your vehicle to withdraw money. A violent criminal steps up behind your partner and threatens them with a pistol while robbing them. I always completed each FTS scenario “blind” and on video before I used them to train students. After each student completed the scenario, I then demonstrated my solution to the problem.

In the FTS scenario shown, every new student attempted to verbally engage and/or warn the criminal threatening their partner. During the scenario, if the criminal became aware of the defender (via the warning or from the student delaying their response), he used the partner as a hostage while moving to a vehicle and kidnapped the partner in response. My solution? Quickly draw my concealed pistol, take careful aim, and shoot the criminal threatening unlawful deadly force in the head—no hesitation, no warning.

Was my solution legally justified? Absolutely. The criminal was using unlawful deadly force to threaten an innocent third person. If I was in that person’s shoes, I would have been justified in using lawful deadly force to defend myself and my intervention was immediately necessary to protect that third person (my partner). Further, the criminal was in the process of committing an aggravated robbery so my use of lawful deadly force was justified under Texas Penal Code, Secs. 9.32. and 9.33. 

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Texas Penal Code Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31(non-deadly force); and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Protecting a Third Person:

Sec. 9.33. DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if:

(1) Under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person. 

Update: Setting Yourself Up for a Murder Charge --The James Meyer Incident

 

James Meyer (Dallas Police Photo)

This is an update to an article I wrote in 2019. That article discussed a Dallas man who was charged with murder in the fatal shooting of a burglar outside his Dallas home on 26 September 2019.

Sources stated that James Michael Meyer told police that noise outside his home awakened him about 5 a.m. He looked out a window and saw someone trying to break into his storage shed with a pickaxe. Meyer said he grabbed his handgun, chambered a round, and then exited his home yelling at the person to stop what he was doing and not come any closer or else he would shoot.

Meyer told police the person took several steps toward him, so he fired his pistol at the individual. Meyer stated that at that point, the burglar dropped the pickax and ran toward a park behind his house.  Prior to that moment, Meyer’s use of deadly force was likely justified under the law.  His attacker was threatening/using unlawful deadly force (i.e. brandishing a pickaxe).  Meyer was innocent (i.e. he did not start the incident and had a right to be present in his back yard), the threat was imminent, his action was proportional to the threat, and a reasonable person could conclude his actions were a valid/justified response to the threat.

However, Meyer also told the police that he fired an additional shot "into the night" in the direction of the park as the burglar ran away. He stated that he didn't know whether he had struck the person, so he went into his house and back to bed – he did not call the police

Later that morning Meyer looked outside once again and saw something in the park. Upon closer inspection, he found an unidentified individual lying face down so at that point, he called the police. His second shot had not missed – it killed the fleeing burglar.

Meyer like many people, found himself charged with murder because the incident evolved from one in which Meyer's use of deadly force was potentially justified into one where the perpetrator is fleeing, is not longer threatening unlawful deadly force, and the defender is now the aggressor.

What Should You Do During Such an Incident?

Call the police. If you are involved in any use of force self-defense incident call the police. Don't call your attorney, your neighbors, your parents, your husband, your wife or anyone else before you call the police. Tell the police dispatcher that you have been attacked and that your attacker may be or is down (in Meyer’s case he said did not know).

Stay on the line with the dispatcher and give your location, describe what you are wearing, and remind the dispatcher that you are the victim. Request that the dispatcher provide responding officers a description of what you are wearing and where you are located. The dispatcher will likely ask questions concerning what has happened however, you do not have to respond, nor should you answer those questions. Tell the dispatcher that you will talk to responding officers. The call your attorney and/or your post-incident protection plan provider.

Sign the Complaint. When the police arrive tell them you will sign the complaint. This reinforces that you were in fact the victim in the incident.

Point out the Evidence. Evidence is perishable and can be moved or stolen. Meyer disturbed critical evidence and altered a crime scene when he gathered up his spent cartridges and threw them in the trash. Under no circumstances should you willingly disturb or move evidence yourself. This is altering a crime scene and is itself a crime in many jurisdictions.

Point out Witnesses. If there are witnesses point them out to the police. If you do not, they may (likely will) leave the scene and their information will leave with them.

Cooperate. Tell the police that you will cooperate fully once you have consulted legal counsel. Police likely will ask questions at the scene beyond what you have told them in the steps above. Politely decline and verbally state that you are exercising your right to remain silent and repeat that you will cooperate fully once you have consulted legal counsel.

AND THEN SHUT UP. Do not talk to anyone other than with your attorney about anything, ANYONE or ANYTHING.  Your voluntary statements may constitute a waiver of your rights and may be used against you, even if you previously invoked your right to silence.

This is where a post-incident protection plan such as CCW Safe or US Law Shield offers can be very helpful in finding a qualified attorney. However, you must ensure that your legal counsel is qualified to give you proper legal advice. If there is any doubt, get another attorney.

According to Meyer’s arrest affidavit, Meyer's attorney agreed to allow Meyer to make a statement on 26 September 2019 -- the day of the incident. I seriously doubt that Meyer and his attorney had carefully reviewed Meyer’s account of the incident at that point.

A detective read Meyer his Miranda Warning before questioning him. The attorney then sat (presumably) silent while Meyer made an incriminating statement:

Suspect Meyer stated that the complainant (the burglar) took several steps towards him and Suspect Meyer fired his gun. Suspect Meyer stated the complainant dropped the pick-axe and ran away in the direction of the park. At that point Suspect Meyer, repositioned himself and fired an additional shot "into the night" which in the direction of the park [sic]. According to Suspect Meyer, the complainant had left towards the park when he fired the second shot. From the suspect's accounts, the threat of serious bodily injury against him was over when the complainant dropped the pickaxe and ran off away from him [Meyer].

Note: In the detective’s report the deceased burglar has become the “complainant” – not Meyer. Meyer’s attorney allowed him to confess to unlawful use of deadly force.  Although he was charged with murder, I can find no indication that Meyer was convicted.

Using deadly force against a fleeing perpetrator who no longer poses an imminent threat of deadly force, failing to call the police immediately, intentionally altering evidence, and then making an ill-considered, incriminating statement to the police can be very problematic for how and where you live the rest of your life.

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Driveway Assault -- How Fast Can It Happen?

One Sunday morning at 4:00 a.m., a Chester, CT man was going to work just like he had many times before. He did not pay attention to or did not notice that there was a vehicle parked at the end of his driveway with two men hiding in the shadows. As he approached his pickup parked in his driveway, he glanced up and saw a figure sprinting toward him. Literally within seconds (2.66 seconds to be exact), a robber was on him and pointing a pistol at his face as he forced him to the ground demanding money. The victim repeatedly said that he did not have any money as the man’s armed accomplice began rummaging through his pickup. The news later reported that the robbers fired shots at the victim as they fled; however, this was not on the video and the victim was not injured during the incident.

This is going to be a series where I explore just how fast a criminal attack can happen through analyzing actual video recorded events. Why is that important? One of the critical challenges a private citizen faces when confronted with a criminal attack is recognizing what is happening and then reacting fast enough to respond effectively. This is not trivial since the attack is often underway before a defender even realizes that there is a problem. Further, many people sincerely believe that their neighborhood is safe, that they go to safe areas, and that deadly violence will not happen to them. Thus, there is a moment (sometimes a long moment) of disbelief and hesitancy when they are faced with an imminent deadly threat. This disbelief and accompanying hesitancy often renders their response overcome by events even if they have planned a response.

If you are not familiar with COL Boyd’s Observe, Orient, Decide, Act cycle, it is worth reviewing.* For the purposes of this discussion, suffice it to say that the OODA framework is a process of decision making in response to changes in your environment. In COL Boyd’s case, he used it to teach fighter pilots how to make good decisions in during aerial combat. We can apply the OODA framework to determine whether the victim in this incident had time to effectively respond to the abrupt change in his environment. 

Look at the time again – 2.66 seconds from the start until the victim has a pistol in his face. The victim observed the approaching robber 0.44 seconds after the robber had begun his sprint. At 0.87 seconds into his sprint, the robber chambered a round in his semi-automatic pistol and was at that point capable of firing at the victim who was continuing to stare at the on-coming robber. However, upon (presumably) reacting to the round being chambered at 0.94 seconds, the victim is now aware of a deadly threat and starts to react by turning away from the robber. The victim now has 1.72 seconds to respond before the robber who is approximately twenty feet away is on him.

A reasonably well-trained person can draw and fire a concealed handgun in 1.72 seconds; however, that does not fully describe the victim’s problem. If we look at this incident using Boyd’s OODA cycle from the victim’s and the robber’s perspective, the robber has already passed through a full cycle. He Observed the victim exiting his house, Oriented when he saw the victim moving toward his pick-up, Decided to rob him, and began Acting (sprinting toward the victim) all while the victim was still in the Observe stage.

As we see in this incident, the defender is typically behind in the decision cycle because the violent criminal actor is usually in the Act stage while the defender is still observing. The quicker the defender (in this case the victim) perceives what is happening (observe), the quicker the defender can act (i.e. execute a response)—this of course presumes the victim has planned for an effective response.

How do we effectively respond to incidents such as this? The key is to have a set of pre-planned actions to execute in response to a given stimulus. This allows you to skip the Orient and Decide steps and go immediately to the Act step. If an unknown contact is approaching and attempting to engage you, there are several immediate actions you can take depending upon the totality of the circumstances. For example, if I am pulling into my driveway and a car stops at the driveway entrance with young men exiting, I have several options. If I am still in the car, I can simply drive away—across the lawn if necessary (see picture below). If I have exited the car, I can take cover and covertly draw my pistol and challenge them. Visualizing “what if” scenarios based upon your environment and daily activities and deciding what your action would be in each scenario will significantly speed up your reaction if you are suddenly facing unlawful deadly force.

The solution to this challenge is to develop mental models of if “X” observation, then “Y” response. Mental awareness and mindset are critical components to surviving any defensive encounter involving deadly force. However, mindset alone is insufficient. It must be coupled with proper training and a willingness to act. This allows one to skip the intervening steps in the OODA cycle and increases the chance of responding effectively. The victim in this incident was not hit when the robber(s) shot at him—but he certainly could have been.

I addressed how to respond effectively; however, how do we prevent incidents such as this? One technique taught in anti-terrorism classes is examining your environment for potential threats from a safe area. I always look at my driveway area before I exit my house. The victim in this incident had a camera that clearly showed a vehicle parked in the street near the end of his driveway and it is very possible that had the victim checked his camera, he would have seen the robbers prior to exiting his house and could have made the appropriate decision without a pistol in his face. The fight we avoid is a fight we win.

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* For an in-depth discussion of Boyd’s OODA framework: https://www.artofmanliness.com/character/behavior/ooda-loop/

Hornady Critical Duty 9mm Velocity Testing

In a recent range session, I used my LabRadar to measure the velocity difference between barrel lengths for the Hornady Critical Duty 9mm 135 grain FlexLock standard pressure round. For the testing I used my SIG P365, my SIG P320 Carry, and my P320 X5 Full size pistols.  

Since I use this Hornady Critical Duty 9mm round in my SIG P320 Carry and my P365 everyday carry pistols, I was curious about the velocity difference between barrel lengths. My expectation going into the testing was that the P365 would record the lowest velocities and the X5 would record the highest velocities since it had a longer barrel.

However, that was not the case. The P320 Carry with its 3.9-inch barrel recorded the highest velocities. I fired ten rounds of the same lot number through each of the three pistols. The table below shows the results of my testing with the velocities in feet per second or FPS. 

Pistol	Barrel	Average	High	Low	Extreme Spread	Std Deviation
SIG P365	3.1 Inches	959	975	943	33	14.8
P320 Compact Carry	3.9 Inches	1038	1048	1019	29	13
P320 X5	5.0 inches	983	1010	974	37	15.3

I referenced the Lucky Gunner Handgun Self-Defense Ammunition Ballistics Test and looked at their results for the standard pressure Critical Duty round. In their 9mm Luger testing, Lucky Gunner used a Smith & Wesson M&P9C, 3.5-inch barrel—a barrel exactly halfway between the barrel lengths I used. The Lucky Gunner average velocity for five shots from the 3.5-inch barrel was 1053 FPS.

Hornady’s description of the Critical Duty states in part that it is: “Designed to meet the needs of those who demand superior barrier penetration and prefer a full‑size handgun for their personal protection.” To me, full-sized would mean a five-inch barrel. However, Hornady’s ballistics data for the Critical Duty 9mm 135 grain standard pressure round showed a velocity of 1010 FPS from a four-inch barrel.

So why was the velocity lower in the five-inch X5 barrel when compared to the 3.9-inch P320 Carry? I have no idea. Perhaps the burn rate for the powder Hornady uses is optimized for a four-inch barrel. I can speculate that the extra 1.1 inches adds a bit of drag to the bullet because the powder had burned at the 3.9-4.0 inch mark. However, that is pure speculation.

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* Lucky Gunner Labs did some interesting ballistics gel testing.  I recommend their research: https://www.luckygunner.com/labs/self-defense-ammo-ballistic-tests/#9mm