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

Shot in the Back! Justified or Not?

Prosecutors have criminally charged police officers when the officer has shot someone in the back or when the officer shot someone falling down, stating that these shots were unjustified. There is a fine line between shots that are a lawful response to a deadly threat and shots that are fired after the deadly threat ceases. The only time a private citizen defender (or law enforcement officer for that matter) may use lawful deadly force is when another is threatening or using unlawful deadly force. When the threat has ended, the defender must stop using deadly force. Of course, the problem lies in determining exactly when the threat has ended. The fact that basic human nature often causes an attacker to reflexively turn away from the defender’s gun compounds the difficulty of making this determination.

Dynamic, deadly encounters can happen very quickly and a private citizen’s use of deadly force in lawful self defense can be over in moments. However, close legal scrutiny on the defender’s decision to start and stop shooting can result in the aftermath taking years to play out. 

Massad Ayoob cites an example of this challenge in the case of Florida v. Mary Hopkin in the mid-1980s. Mary Hopkin was a frequent victim of her burly common-law husband James Yarolem who often beat her and once had strangled her and left her for dead. Yarolem was out on bail and drunk when he returned to Hopkin’s home and tried to enter. Hopkin wouldn’t let him in and warned him that she had a gun; however, he broke down the door and advanced on her.

Hopkin fired three shots as fast as she could from a .22 LR revolver and stopped shooting when she perceived Yarolem to turn and run. He collapsed and died outside; however, Hopkin’s shots had hit him once in the chest, once in the side just behind lateral midline, and a fatal shot square in the back and into his heart. Janet Reno charged her with murder because she shot Yarolem in the back when he was “no longer a threat.” However, the jury found her not guilty after her attorney Mark Seiden, deconstructed the state’s case meticulously point by point with Massad Ayoob’s assistance.

Exactly how fast can someone turn around? Professor Bill Lewinski of the Force Science Institute at the University of Minnesota at Mankato found that a person could turn from facing forward to exposing their lateral mid-line in ¼ second for ¼ turn and ½ second for ½ turn--in other words fully presenting their back in 0.50 seconds. Further, there are cases where a shooter facing away can effectively point their pistol behind them (Lewinski, B., (2000)).

The Tadarius Hunt Incident:

In the images below, Tadarius Hunt, a suspect wanted for attempted murder points his pistol backward and fires at a police officer as he is running in the opposite direction. We see two different versions of the incident – one from police vehicle dashcam and one from the officer’s perspective. In the picture Back #1 below, Hunt has drawn a pistol and is firing it at the officer.

Back #1 Hunt has drawn a pistol and is firing it at the officer

In the picture Back #2 below, Hunt has turned to his right and is pointing the pistol at the officer as he prepares to fire once again.

Back #2: Tadarius Hunt Pointing A Pistol At Police Officer

In the picture Back #3 below, Hunt has turned further to his right and is firing the pistol at the officer once again.

Back #3: Hunt Firing at the Police Officer

Every time the Hunt pointed his pistol at the police officer, his back was exposed. It is likely that without the video evidence, it would have been easy for an emergency room physician or a prosecutor to conclude that the officer shot Hunt in the back as he was fleeing.

The Force Science Research Center (FSRC) has done research to understand the stop shooting problem when a police officer is shooting and assessing and has identified several factors explaining why a police officer who is both shooting and assessing cannot stop shooting immediately. This is the exact same problem a private citizen defender faces.

John Farnam did a study of just how fast someone could fire a revolver and found that it could be fired four times a second, while a semiauto could be fired five or possibly six times a second. My personal testing shows that someone with intermediate to advanced skills could fire a revolver five to six times a second and a semi as many as six to eight shots in a second. Of course, adrenaline, firearm design, and personal skill can affect this speed. Jerry Miculek holds the current record for shooting eight shots from a revolver on a single target in 0.94 seconds or one shot every 0.117 seconds (not counting his reaction time to the timer signal).

In the Tempe Study (2003), the FSRC determined that the typical reaction time to an anticipated stimulus is 0.25 seconds. From a stopping perspective, the study showed that when the average police officer stops shooting based solely on a perception of change in the outside world (and was anticipating this change), the fastest the officer is able to do this is 35/100ths of a second resulting in two shots being fired (p. 28). The ability to stop will occur not when the subject has changed their threatening behavior but after the police officer begins to detect a change in the threatening behavior. This distinction is important because the psychological processes of perception and detection often take many times longer than the physical responses involved.

The FSRC concluded that an officer who engages sequentially in all of the steps necessary to cycle through the observe, orient, decide act process can take a second to a second and a half or more to stop shooting. Measured in trigger pulls, which are occurring at a quarter of a second each, this is an extra four to six rounds after the threat stops. 

This is approximately the same amount of time that Green (2000) found for reactions to applying the brake and stopping in a real-world driving situation. This means that it is not possible to stop shooting at an attacker before he/she has an opportunity to spin and receive shots to the back (see also Lewinski, B., (2000)).

What are the implications for the armed citizen? If you are committed to firing a shot and have started to pull the trigger, the speed with which you can pull the trigger likely precludes stopping that action. If the threat turns as you pull the trigger, the trigger pull speed when combined with turning speed (particularly the speed of a young, athletic person) could easily result in justifiably firing one or more rounds that impact the threat in the back.

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Ph.D. Lewinski, B., (2000) Why Is The Suspect Shot In The Back? Finally, Hard Data on How Fast the Suspect Can Be In Eleven Different Shooting Scenarios

Ph.D. Lewinski, B., & Hudson, B. (2003a). Time to start shooting? Time to stop shooting? The Tempe study. The Police Marksman, 28(5), 26-29.

Green, M. (2000). “How long does it take to stop?” Methodological analysis of driver perception-brake times. Transportation Human Factors, 2(3), 195-216.