The Four Rules of Firearm Safety? Instructor Shoots a CCW Student.

The Palm Springs Desert Sun* reports that a Riverside California County Sheriff's Department trainer (apparently not a sworn officer) shot a man attending a concealed weapons permit firearms training class.

A sheriff’s department spokesman stated that as gun range staff were inspecting student's firearms to ensure they were unloaded, the range staff member administered a "trigger pull test" and shot the student in the leg.

Paramedics transported the citizen to a local hospital where he received treatment for a non-life-threatening wound. 

The news report goes on to say that the sheriff's Perris Station staff and the staff at the Ben Clark Training Center are investigating the "accidental discharge" incident.

I can save them the trouble.

The instructor, having failed to check and see if the firearm was loaded, pointed the firearm at the student’s leg, and intentionally pulled the trigger. 

Did the instructor intent to shoot the student?  Undoubtedly no; however, this was negligence, not an accident.

The instructor violated at least two of the firearm safety rules.

1. The instructor did not treat the firearm as if it was loaded.

2.  The instructor did not point the muzzle of the firearm in a safe direction.

The four firearm safety rules are multilayered.  You can typically violate one without catastrophic consequences.  Once you begin to violate two or more you are in trouble.

The four firearm safety rules:

1. Treat every firearm as if it is loaded at all times.

2. Always point the firearm in a safe direction — this is dependent upon the environment and circumstances. We live in a 360-degree world.  A safe direction one minute may not be safe a moment later.

3. Keep your finger off the trigger unless you are intentionally firing a shot. Discard all other variations of this rule.  Intentionally firing a shot.

4. Be sure of your target and what is beyond it.

* From the Palm Springs Desert Sun, Published Aug. 24, 2019

Think Before Shooting--Fleeing Suspects

Jason Moak--Suspected Burglar

Recently Concealed Nation ran an article that recounts a burglary incident and shooting that happened in German Township, Ohio. Richard Winegardner’s unoccupied home has been burglarized numerous times over the last few months; however, this time it happened while Winegardner was home and in the shower. You can click on these links to read the Concealed Nation article and news account.

Winegardner calls 911 while he is confronting the person in his house and simultaneously providing the dispatcher information. It seems that the suspected burglar (later identified as Jason Moak) at some point decided to flee and Winegardner apparently gave chase, ultimately firing numerous shots at Moak’s SUV. The news reports that police found the SUV with the back window shot out, bullet holes in the interior, and the rear bumper.

The Concealed Nation article closes with a comment that causes some concern. “While we never recommend shooting at a fleeing suspect, this particular case ended up working out. Had Winegardner shot Moak, well, that could have been a different ending for Winegardner.” It is not clear whether the comment implies that it was better to shoot at the fleeing Moak rather than using deadly force in the residence or whether it is fortunate that although Winegardner shot at Moak’s vehicle he did not hit him.

Ohio like many states has a form of a presumption of reasonableness if you use force or deadly force against someone who has unlawfully, or in some circumstances, unlawfully and forcibly entered an occupied habitation (and in some states) vehicle, or business. Under Ohio law* there is a presumption that a defender acted in self-defense or defense of another if he used deadly force against another if the person against whom the defensive force was used had unlawfully entered (or was in the process of unlawfully entering) the residence or vehicle that the defender occupied. Further, Ohio law does not require the defender to retreat before using force in self-defense, defense of another, or defense of his residence.

Ohio law does not say anything about chasing someone who is no longer in the occupied residence, who is in fact fleeing from the scene, and is not posing a deadly threat. I confess surprise that prosecutors did not charge Winegardner criminally for shooting at Moak’s vehicle.

Knowing your state’s specific laws associated with these circumstances can be very important. Texas law for example presumes you acted reasonably and justifiably if you use force or deadly force to defend yourself or another innocent against an intruder who unlawfully and with force enters your occupied habitation (home or residence), vehicle, or place of business or employment. 

Texas law requires meeting these two provisions to give rise to this important legal presumption. Someone unlawfully entering your occupied residence through an unlocked front door would not meet the use of force provision and therefore may not enjoy the presumption of reasonableness. Of course this does not mean that you could not argue self-defense under the totality of the circumstances if someone illegally entered through an unlocked door and subsequently presented a threat of unlawful deadly force.

Many people find themselves in trouble when an incident evolves from one in which deadly force was justified into one where the perpetrator is fleeing and the defender is now the aggressor. It is clear that some people cannot control what is apparently an irresistible urge to chase after and shoot at someone who is fleeing from a confrontation. A quick Internet search for “chases robber” or “chases burglar” shows numerous instances. Although some states have fleeing felon provisions in the law, using deadly force under these circumstances can potentially be very problematic for how and where you live the rest of your life.

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* Ohio 2901.05 Burden of proof - reasonable doubt - self-defense: Section B (2) A person is presumed to have acted in self-defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

The Same Thing, the Correct Way, 48 out of 50 Times

Periodically Texas License to Carry instructors must fire the LTC qualification to renew their instructor certificate. In Texas, an LTC instructor must qualify with a .32 caliber or larger revolver and a semi-automatic pistol. I fired the qualification in July of 2019.

For the revolver I chose to qualify with a 4-inch S&W 44 Remington Magnum with a heavy (however not absolutely full power) 240 grain load that is about the equivalent of the Remington factory Semi-Jacketed HP load. For the semi-auto I shot my everyday carry SIG P320 carry in 9mm with the equivalent of the Hornady 135gr Critical Duty load. 

My goal for the semi was 50 shots in the "X" ring. To shoot well you must do the same thing, the correct way, every time. My students tell me that my mantra is often the one thing that really sticks in their mind. I tend to repeat it over and over during the course of a class. I did not do this with the semi and slipped two in the Ten ring due to two sloppy trigger pulls. The same thing, the correct way, 48 out of 50 times--I missed my goal.

Chased the same goal with the revolver and dropped a few more outside the "X" ring and two in the Nine ring. Grrrrrr. . .



The Texas License to Carry qualification is as follows: Your handgun must be .32 caliber or larger. 

Course of Fire:

3 yard line – 20 shots:

- 1 shot in 2 seconds, 5 times
- 2 shots in 3 seconds, 5 times
- 5 shots in 10 seconds, once

7 yard line – 20 shots:

- 5 shots in 10 seconds, once - 1 shot in 3 seconds, 5 times - 2 shots in 4 seconds, once - 3 shots in 6 seconds, once - 5 shots in 15 seconds, once

15 yard line – 10 shots:
 
- 2 shots in 6 seconds, once - 3 shots in 9 seconds, once - 5 shots in 15 seconds, once

An LTC student must score of 70% or 175 points of a possible 250 to pass. An LTC instructor must score at least 90% or 225 points to pass. Five points for each shot within the 8 ring, 4 points for each shot within the 7 ring, 3 points for each shot within the colored silhouette, but outside the 7 ring, no points for shots outside the silhouette.

I fired a possible score of 250 on both qualifications; however, that was not the point. I missed my goal.

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Advanced Low Light Course

In Mid-May 2019, I conducted an advanced Low Light course with two students who have progressed to this level. For the qualification, we fired the MAG 20 Live Fire course. I tossed in an extra challenge by covering each target with a new t-shirt so the students did not have a reference aiming point.

We used the San Antonio Police Department target and scored it as five points in the inner “bottle,” four points inside the next scoring area, and zero points outside the four point ring or for misses.

⁣We shot a single speed qualifier in daylight for a control score and then in low light with no moon. I shot the qualifier as well and achieved a 300 with a 5-5/8ths inch group. I used a P320 Carry with Lima Module, a Trijicon Red Dot and a Fenix hand-held flashlight.

To learn more about the MAG20 qualifier, go to the link here.

SIG P320 Carry with the LIMA Module

At 15 yards the standard MAG20 qualifier has six shots using the Weaver stance, six shots using the modified Chapman, and six shots using the Isosceles with a reload between each string. The only challenge with the qualifier was using the Isosceles stance at 15 yards—very difficult with a hand-held light unless you are using the syringe technique and then the pistol/light grip will shift with every shot. With the Fenix light I was using, the tailcap design makes the syringe technique almost impossible. The student’s flashlights had a similar design.

Given these challenges, I allowed the students to use the Isosceles or if they preferred the modified Chapman or Weaver. At 15 yards, I shot it using the Weaver, then Chapman, then Weaver and used the 
Harries flashlight technique.

Harries Technique

You must practice low light techniques to have any hope of using them under stress. The students in this course have mastered low light shooting through practice and taking more advanced classes. 

You can practice these techniques with live fire during daylight if your range won’t allow night shooting. If your local range has IDPA matches, shoot the course of fire using your flashlight if the match director will permit it. You won’t win the match; however, you will learn how to shoot and manipulate your pistol under some stress.

To my knowledge, no data exists concerning private citizen-involved shootings with criminals under low light conditions; however, since a lot of criminal activity occurs after dark we can assume that there is a likely correlation. There are several reasons to use a flashlight: to observe and detect, to illuminate and navigate, to eliminate anonymity, and to identify and engage threats. Used properly, a flashlight lets you see danger before it can affect you and it can encourage the danger waiting in the dark to go elsewhere.

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Don't Get Shot: Dealing With Police During a Traffic Stop

March 6, 2014, Opelika, Alabama: Air Force Airman 1st Class Michael Davidson was travelling on I-85 headed to his next duty assignment at Seymour Johnson Air Force Base in North Carolina. While driving through the Opelika, Davidson (who was driving an SUV) lightly sideswiped a tractor-trailer so both drivers pulled over to report the accident. Coincidently, just prior to this accident the Opelika Police Department had received a phone call about an SUV driving erratically along I-85 and Opelika Police Officer Phillip Hancock was in the area attempting to locate the erratic driver.

When the accident call came in Officer Hancock quickly arrived at the scene and pulled up behind the two vehicles just as they both exited the roadway. The police dashcam shows Airman Davidson attempting to get out of his vehicle; however, because he had pulled his SUV off the road shoulder, the vehicle was tilted slightly to the right. This caused to door to close as the Airman tried to exit.

As he struggled with the door, Airman Davidson made a movement with his right arm that is similar to someone drawing a weapon--and apparently similar to removing a wallet from your back pocket since that is what the Airman was actually doing (see picture #1 below). However, as Davidson exited the vehicle, he held the wallet in an unusual manner in both hands, pointing toward Officer Hancock (see picture number #2). In the video, Airman Davidson looks exactly like someone pointing a weapon as though he was preparing to shoot.

#1: Airman Davidson Exiting Vehicle

 

#2: Airman Davidson Holding Wallet

Officer Hancock yells at Davidson to “Let me see your hands” two times before firing almost immediately (0.25 seconds) after he yells the second command. Officer Hancock fired two rounds within approximately 0.25 seconds, one bullet struck Airman Davidson in the lower abdomen and the second bullet struck the road next to Davidson’s right foot.

A furtive movement is a suspicion provoking movement that (under the totality of circumstances) is consistent with accessing a weapon, but is not reasonably consistent with doing something else. The totality of the circumstances is the key element in this discussion since Davidson was drawing his wallet, not a pistol. It would be a gross overreaction on your part to draw a weapon while standing in a cash register line at a store when the person in front of you reached for their wallet. Their actions would be consistent with paying for merchandise given the totality of the circumstances.

When dealing with an uncertain situation, it is perfectly reasonable for an officer to be acutely aware of the ability, or inability, to see a person's hands to ensure he is not clutching or reaching for a weapon. However, yelling show me your hands and then shooting when the person does exactly that is obviously problematic as we see in this incident. Officer Hancock yelling “show me your hands” provided Davidson no effective warning that he was about to shoot him. Davidson later stated that he was in fact showing his hands just as the officer commanded.

In this incident, Davidson’s movement with his right hand and then extending his arms while clutching his black wallet with both hands clearly made Officer Hancock believe that Davidson was holding a firearm and advancing toward him. How quickly can someone exit a vehicle and start shooting?

We did an experiment to determine how fast someone could do this. I exited my vehicle while simultaneously drawing my pistol from a strong-side holster and firing three rounds while advancing. From the time someone could see that I had a pistol in my hand until I began firing was a 0.81 second average time for five runs. My fastest time to begin shooting was 0.47 seconds. My average split time between shots was 0.20 seconds as I advanced toward the remote camera. (see video here).

Many studies have shown that the average person’s reaction time to a stimulus is between 0.70 and 1.5 seconds or longer depending upon the circumstances. Added to the reaction time is the time necessary to complete the physical action the stimulus requires (e.g. pushing the brake on a car or drawing a pistol).* As we see in my experiment, the time between your ability to recognize that someone has a pistol until that person begins shooting can be as short as 0.47 seconds.

Were Officer Hancock’s actions reasonable given the totality of the circumstances? Look at picture #3 below. The left picture is of Airman Davidson drawing his wallet; the right picture is me drawing a pistol.  Do the actions look similar? 

Drawing Wallet                          Drawing Pistol

In January 2017, the United States Court of Appeals for the Eleventh Circuit upheld a lower court's ruling that Officer Hancock acted reasonably when he shot Davidson. "After careful consideration and review of a video recording of the shooting, viewing the evidence in the light most favorable to Davidson, we conclude that a reasonable officer in Hancock's position would have feared for his life," the three-judge panel wrote in the ruling.**

The court’s decision hinged on a single issue: “whether, given the circumstances, Davidson would have appeared to reasonable police officers to have been gravely dangerous.” The Eleventh Circuit justices clearly believed that was the case.

Something people often misunderstand is that the law does not require us to make perfect decisions in a self-defense incident nor does it demand that the threat against which we defend ourselves be an actual threat. The law demands that you must have a reasonably objective belief that you are responding to an imminent deadly threat. Many states have an apparent danger clause which aligns with the concept that in a given set of circumstances, an antagonist’s furtive movement could cross the threshold of apparent danger in the mind of a reasonable and prudent person. If you wait to see the gun, you may well see what comes out of it as we demonstrated in our experiment.

If it later turns out that perception was mistaken, that’s legally acceptable so long as the perception was reasonable and therefore the mistake, a reasonable mistake. All of this is true even if it turns out that the perceived attacker never actually possessed a weapon as in this instance.

In a separate case with similar circumstances the Fifth Circuit held in Young v. City of Killeen, Tex.: "If Young's movements gave (Police Officer) Olson cause to believe that there was a threat of serious physical harm, Olson's use of deadly force was not a constitutional violation.... We hold that no right is guaranteed by federal law that one will be free from circumstances where he will be endangered by the misinterpretation of his acts." ***

So how should you conduct yourself during a traffic stop to lessen chances that your actions will be perceived as a potentially deadly threat?

 -- Stay in your vehicle. A well-known tactic of police killers at traffic stops is to quickly exit the vehicle and advance on the officer while shooting. Bank robbers, terrorists, and other felons have been doing this since at least the late 1970’s and probably much earlier. Although Airman Davidson probably did not know this, his actions mimicked this tactic.

 -- Roll down the driver’s window and place your hands on the steering wheel. Don’t worry about turning on an interior light—at night the officer will light up your vehicle with their spotlight anyway so this is unnecessary. However, your movement can increase the officer’s suspicion that you are doing something nefarious.  

-- Wait for the officer’ further instructions.

This was truly a tragic and very unfortunate event--nothing in this article should be see as placing blame on either Airman Davidson or Officer Hancock. Police officers don’t want to get shot nor do they want to shoot innocent citizens. In reality, both parties want the same outcome. Ensure that your actions cannot be mistaken for threatening behavior when you interact with the police during a traffic stop.

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____________

* http://www.technology-assoc.com/articles/reaction-time.html;  https://www.visualexpert.com/Resources/reactiontime.html

** United States Court of Appeals, Eleventh Circuit. Michael Davidson, Plaintiff - Appellant, V. City Of Opelika, Alabama, Phillip Hancock, John Mceachern, Defendants - Appellees. No. 16-10857, Decided: January 17, 2017

Before Wilson, Rosenbaum and Jill Pryor, Circuit Judges. Michael Davidson was shot by Opelika, Alabama police officer Phillip Hancock just after exiting his vehicle alongside the highway. Davidson was unarmed. He survived the incident but was grievously injured. Davidson subsequently sued Hancock, Opelika Chief of Police John McEachern, and the City of Opelika for claims arising from the shooting. The shooting was undeniably a tragedy, but it resulted from the unique and lamentable position of Davidson's hands holding his wallet the moment before the shooting. After careful consideration and review of a video recording of the shooting, viewing the evidence in the light most favorable to Davidson, we conclude that a reasonable officer in Hancock's position would have feared for his life. Accordingly, we affirm the district court's grant of summary judgment based on qualified immunity in favor of Hancock on all claims. 

*** In Young v. City of Killeen, Tex., 775 F.2d 1349 (5th Cir. 1985), Carolyn Young brought a 42 U.S.C. § 1983 and wrongful death action against police officers and the City of Killeen for the shooting and killing of her husband David Young. The Fifth Circuit stated the material facts:

"David Young, with a friend, drove to a parking lot in an area of Killeen where they could buy marijuana. Officer Olson observed the apparent drug transaction between the two men in Young's car and a pedestrian. Olson directed his patrol car, with lights flashing, at the participants in the attempt to apprehend them. Olson successfully blocked Young by pulling his patrol car in front of Young's car. Olson left his car and ordered Young and his passenger to exit theirs. Young apparently reached down to the seat or floorboard of his car and Olson, believing that Young had a gun, fired his own weapon. The shot was fatal." 

The Fifth Circuit held that Mrs. Young could not recover under Sec. 1983, stating: "If Young's movements gave Olson cause to believe that there was a threat of serious physical harm, Olson's use of deadly force was not a constitutional violation.... The only fault found against Olson was his negligence in creating a situation where the danger of such a mistake would exist. We hold that no right is guaranteed by federal law that one will be free from circumstances where he will be endangered by the misinterpretation of his acts."

Trespassers Will be Shot! Survivors Will be Shot Again!

19 April 2019. St. Paul, MN police were chasing a car thief when he crashed the car and took off running. Moments later, police heard gunfire and found Jalik Combs lying wounded in Vincent Trotter’s yard. Police identified Combs as the driver of the stolen car.

Combs apparently was not armed and allegedly said that Trotter told him to leave his property. Combs said he told Trotter he was leaving and started to depart when Trotter shot him. Combs was shot in the buttocks, forearm, and legs and received medical treatment for non-life-threatening injuries at a local hospital before police booked him into the Ramsey County jail.

Trotter had a sign in his home’s front window that said, “Warning” “No Trespassing, Violators will be shot. Survivors will be shot again!” Police questioned Trotter and eventually charged him with second degree assault with a deadly weapon.

Police likely charged Trotter because Combs was unarmed and the apparent locations of his wounds may indicate that he was leaving Trotter’s property. Although the sign in Trotter’s window probably didn’t affect the police decision to charge him, prosecutors will no doubt use it against him if he eventually faces trial.

Although Minnesota law does accept the use of force (not deadly force however) when the person using the force reasonably believes it is necessary in resisting a trespass, clearly Trotter’s use of deadly force is excessive absent other potentially mitigating factors that may exist and have not yet come to light.*

Minnesota Statute 609.065 outlines the use of deadly force as follows: “The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.” Place of abode refers to the actual dwelling and does not include land, detached garage, storage shed, etc.

Minnesota law, like that of most states requires that a person using deadly force must have done so in the belief that it was necessary to avert death or great bodily harm. That the person’s judgment concerning the severity of the danger must have been reasonable under the totality of the circumstances. And that the person’s decision must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way to avoid and (in Minnesota’s case) retreat from the danger.

Were Trotter’s actions in using deadly force reasonable? Probably not. There is no information indicating that Combs was presenting a deadly threat to Trotter nor that Combs was inside or attempting to enter Trotter’s home.

The law typically applies three criteria in determining whether an act is or is not reasonable:

    1. What would a reasonable and prudent person have done?

    2. In the exact same situation?

    3. Knowing what the actor knew at that time within the mainstream of convention and best practice?

Or phrased another way: Knowing what the actor knew within the standard of care that an ordinary person would exercise under the totality of the circumstances as viewed from the actor's standpoint.

It will be interesting to see if Trotter claims self-defense. Remember, self-defense is an affirmative defense and can be a two-edged sword. To present an affirmative defense, you must admit that you did the act; however, you affirm that your actions were reasonable and that you were legally justified in taking such actions. The prosecution obviously disagrees and will be attempting to demonstrate that your actions were not reasonable nor legally justifiable and that you in fact committed a crime. If the prosecution is successful, your life has just dramatically changed.

As I have written in other articles, anything you post on social media, signs, or other communications can be detrimental to a claim of self-defense and have implications you would rather not have your defense lawyer try to defend at your trial. It is not hard to imagine Trotter's lawyer trying to defend against the following scenario:

    “Ladies and gentlemen of the jury, I present "exhibit A," a sign the defendant placed in the window of his home. According to the defendant, he shoots trespassers just like he shot his victim Jalik Combs. Since Mr Combs survived, did the defendant shoot him again? The defendant who, by his own warning sign planned to shoot trespassers used DEADLY HOLLOW POINT KILLER BULLETS from his AUTOMATIC ASSAULT PISTOL to shoot Jalik Combs innocently on Mr Trotter’s lawn. Was Jalik Combs trespasser that should have been shot? Killed?

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* 2018 Minnesota Statutes, 609.06 Authorized Use of Force, Subdivision 1.