You Show Me Yours and I'll Show You Mine

On Monday, March 21, 2022 at around 5:15 pm, two males drove into a car dealership in Houston, Texas. The car dealership employee stated that one of the males walked up to him and asked if he could test drive a car. The employee returned to the office with the male following. The employee said that as sat down on his chair, he noticed the male pulling his shirt up and grabbing a pistol.

The employee then drew his pistol. When the suspect saw the employee was armed and prepared, the robber said “No!” to the employee as he smiled, returned the pistol to his chest band,  turned around, walked out of the office, and took off running. The second suspect, driving a four-door Mercedes, also fled from the parking lot. 

While many criminals may have no hesitation in using deadly force against their victim, most have no interest in engaging in a gunfight nor in getting shot themselves as we see in this incident.

The employee was in Condition Yellow, was prepared, and knew that he might have had to defend himself on 21 March 2022, just like every other day. His readiness to take defensive action enabled him to prevail.

If you know the guy or his partner--the Houston Police are still looking for him. Full video here.

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Texas Self Defense Law: Hamel v State

On 31 July 1992, Mary Glissen called her brother Joseph Lee Hamel hysterical and crying and said that she was fearful that her boyfriend, Charlie Brown was going to kill her. Mary and Charlie had a history of physical violence between them including Charlie once holding a loaded gun to her head. She said she was scared to be at the house and asked Hamel to pick up her belongings. Mary admonished Hamel to be very careful because Charlie was carrying a gun in the car and had violently destroyed many of the things in the house.

Hamel and his 67-year-old father Leo went to Mary’s house to pack her possessions. The house looked like a cyclone had been through it with nothing left intact. Hamel began boxing up Mary’s things, using his pocket knife to cut tape in the process. When Hamel left to get additional packing boxes he gave his father an aluminum tire thumper for protection in case Charlie should come back. Shortly after Hamel returned from his errand, Charlie came into the house, approached Hamel, and asked in an angry, threatening tone, “Where is that bitch?” Hamel told Charlie he did not want any trouble and asked him to depart and let them take Mary’s things. As Charlie moved back toward the front door, Leo came into the room holding the tire thumper at his side and also asked Charlie to leave.

Charlie responded and told Hamel that if he did not take care of his father, Charlie was going to shoot Leo. Charlie also said that he had something in the car to shoot him with. Charlie then exited through the front door and headed toward his car which was parked six to eight feet from the door.

Hamel, believing Charlie was going to the car to get a gun, charged Charlie and stabbed him in the stomach. Charlie tried to get in the driver’s door of his car and Hamel, thinking Charlie was trying to get his gun, prevented Charlie from reaching the car; however, as soon as Charlie stopped trying to get to his car, Hamel stopped all aggressive moves toward Charlie. Charlie staggered to a neighbor’s house for help.

The Amarillo Police arrested Hamel and the prosecutor charged him with aggravated assault. During Hamel’s trial, Hamel and his father testified that for several reasons they feared for their lives when Charlie came into the house. They knew about Charlie’s past violence toward Mary and others; Mary had warned Hamel that Charlie would hurt somebody when he was as angry as he had been; Mary had said that Charlie had a gun in his car; the condition of the house indicated that it had been violently ransacked; and about a month before this incident, Charlie had personally told Hamel that he had shot a man and that he had been convicted for being a felon in possession of a firearm. Based upon this knowledge, Hamel believed that Charlie had a gun in his car and intended to carry out the threat he had just made.

However, the jury convicted Hamel of aggravated assault and the judge assessed punishment at two years confinement. Hamel appealed his conviction on the grounds that the trial court should have given the jury instructions on self-defense and defense of a third person. The Texas Court of Appeals acknowledged that whether a defendant is entitled to a self-defense instruction depends upon the defendant’s assessment of the situation and his belief regarding the necessity of the use of force. The court also noted Hamel’s testimony that he believed the victim had a gun in his car and was a threat to him and his father. Nevertheless, the Court of Appeals held that the denial of the requested instructions was not error because there was no evidence that Charlie used or attempted to use deadly force.

Was Hamel’s belief that Charlie was a going to carry out his threat reasonable? The yardstick for measuring “reasonableness” is based upon three factors:

    -- What would a reasonable and prudent person have done?

    -- In the exact same situation?

    -- Knowing what the defendant knew at that time within the mainstream of convention and best practice?

Let’s analyze the totality of the circumstances facing Hamel as Charlie was moving toward his car from the perspective of Ability, Opportunity, Jeopardy, and Preclusion. In order for the use of force to be justifiable under the law, your attacker must have the power — or ability — to cause serious bodily injury or death, the opportunity to use that power, and show a manifest intent to exercise that ability. In some states (like Texas in 1992) a fourth element comes into play – preclusion – or a requirement to retreat from the encounter if it is safe to do so.

Ability is most commonly associated with some kind of weapon, whether it is hands and feet, a gun, knife, ink pen, or effectively any other object depending upon the circumstances. Charlie said he had a gun in the car and Hamel had no reason to think Charlie’s statement was an empty threat given Charlie’s history of violence.

Opportunity is the second AOJ component that must be present to justify the use of deadly force. The person with the ability to attack you with unlawful force must also have the opportunity to do so and be able to do so immediately. Proximity is often an important factor in establishing opportunity. Charlie was going to his car which was close to the home’s front door and with a firearm in hand, Charlie would have had an immediate opportunity to use deadly force against Hamel and Leo.

The third component in the AOJ triad is jeopardy. Jeopardy speaks to the attacker's intent. In order to fulfill the jeopardy criteria, the attacker must clearly indicate through words or deeds that he is going to carry out an attack. Like opportunity, jeopardy must also be immediate to justify the use of deadly force in response. Charlie said he was going to shoot Leo, that he had something in the car to shoot him with, and was in that moment physically going to his car so in this case the jeopardy element was fulfilled. If you wait to see the gun, you are likely to see what comes out of the barrel.

One additional factor that may be combined with AOJ in some jurisdictions is preclusion or a requirement to retreat. Texas at that time was a duty to retreat state and Hamel had to demonstrate that he saw no way to safely retreat and thereby avoid having to employ deadly force to counter Charlie’s unlawful attempt to use deadly force. 

During his trial, Hamel testified that he was not familiar with Mary’s house and did not know whether he and his father could leave through the fenced back yard. Charlie was far closer to his car than Hamel was to the back door of the house and Hamel said he did not think he could take a chance on being caught in the back yard with only a pocket knife if Charlie had a gun.

The AOJ and P factors in this case clearly support Hamel’s belief that Charlie was going to immediately use deadly force once he retrieved his gun and that Hamel and his father could not have safely retreated.

The Texas Court of Criminal Appeals agreed and reversed the lower court’s decision stating that Hamel was entitled to a charge on self-defense if evidence was presented which, if credible, showed that Hamel reasonably believed his use of deadly force was immediately necessary to protect himself against Charlie’s use or attempted use of deadly force, and that a reasonable person in Hamel’s situation would not have retreated.

The court observed that Hamel’s own testimony raised the issue of self-defense. Hamel testified that he believed Charlie was going to the car for a gun and that he could not let Charlie get to the weapon and fulfill the threat he had made. Hamel said he believed the action he took was necessary to defend his life and the life of his father and was immediately necessary to protect himself against Charlie’s imminent attempted use of deadly force.

The judges held that given the circumstances surrounding the incident, Mary’s warning that Charlie had a gun in his car, and Charlie’s threat, they could not say that it was unreasonable for Hamel to believe that Charlie was going to his car in an attempt to carry out his threat. The judges also held that the evidence did not support a belief that retreat was a reasonable option given the totality of the circumstances.

The court acknowledged that although Hamel would not have been entitled to a self-defense instruction if his use of force was in response to verbal provocation alone, Charlie’s threat did not stand alone. Charlie’s move toward the car was the physical act that rendered his conduct more than a mere threat.

The Court of Criminal Appeals concluded that Hamel was entitled to a self-defense jury instruction and to an instruction on defense of a third person. Since Hamel properly objected to the charge, the court concluded that reversal was required given that the error was calculated to injure Hamel’s rights as the defendant. Reversed and Remanded.

Hamel v. State 916 S.W.2d 491 (1996)

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Low Light Class Assessment -- 2022

We finished the our Low Light Fundamentals class for winter 2022 with a great group of engaged students. Some might ask why we should learn and practice low light techniques. I suppose the answer to this question depends upon your personal circumstances and perhaps where you live. If you live in a large city where it is literally never dark due to street lights, parking lots, etc., then learning and practicing low light techniques is probably not worth the time and effort. However even though I live in San Antonio, Texas, in my neighborhood there are no street lights and you can easily find yourself effectively in the dark when outside if there is little or no moon. As a result, I find value in practicing under low light conditions.

Low light environments pose additional challenges with a pistol. To be successful in low light conditions, a shooter should have decent mastery of marksmanship fundamentals under normal lighting conditions. A shooter who cannot keep their shots within an eight-inch circle at 7 yards will have difficulty in low light. A problem I have noticed previously and I saw again in this class with newer shooters is a tendency shoot high on the target. Shooters new to low light engagements often subconsciously tilt the pistol muzzle up slightly in order to see the front sight better and end up hitting high or missing the target entirely. Regardless of the lighting conditions, with iron sights you must properly align the sights and then concentrate on the front sight while simultaneously pressing the trigger to the rear without moving the pistol. Hard to do for some under normal circumstances with good light--more difficult to do under low lighting conditions.

Shooting accurately with a flashlight is much more challenging than simply using a normal two-handed stance. Some low light techniques require one-handed shooting or as in the Harries technique the use of a modified Weaver Stance.

How about a flashlight on the pistol? We have had several police officers attend our low light classes and practice sessions and some departments issue pistols with mounted lights. I have no objection to pistol mounted lights and they can make hitting the target much simpler with the proper switch configuration. However, I expect students to master hand-held light techniques since searching with a mounted light virtually guarantees that you will point the pistol in unsafe direction at some point. In class, shooters search with their hand-held light and then they are free to release it and go to the pistol mounted light if they wish to engage.

We completed two decision based-scenarios in the class. These scenarios are a surprise where proper mindset, target recognition, use of flashlight techniques, movement, and marksmanship are critical to success. We use photo realistic targets with a mix of threats and non-threats.

Scenario #1: Knife Attack

In scenario one, the student is walking down a dark street when a bystander warns the student of another individual lurking in an alley opening. The individual doing the warning has nothing in their hand, however, they do look intimidating and they are pointing a finger toward the student’s right. Another individual initially hidden from view to the student’s right is holding a knife and begins demanding their money.

Several participants immediately engaged the innocent individual with one student (a retired peace officer) drilling the innocent man through the heart. Another student fired six shots at the innocent, missing him every time. When I asked her why she shot at the person, she said, “He scared me.” Some students were so fixated on the innocent that they admitted they never saw the man with the knife even though he was loudly demanding their money.

Two students who did notice the knife wielder tried to rapidly back away from him without looking where they were going—this despite my repeated exhortations in class to ensure you are pointing your feet in the direction you intent to move to reduce the possibility of falling. We had practiced low light engagement techniques for just such a circumstance; however, this practice did not translate into technique under stress.

Lessons from Scenario #1:

A key lesson from scenario #1 touches on the legal aspect of using deadly force. Five of seven students shot at the innocent individual. One student’s comment of “he scared me so I shot him” is legally indefensible and likely represents an immediate trip to jail. Other students clearly violated the fourth firearms safety rule in that they did not take the time to know their target.

On a flat square range with no obstacles, you can get away with backing up and not looking where you are going. I see this all the time in competition and I believe that this behavior is a competition training scar. Backing up for more than a step or two in the real world creates a significant fall risk due to obstacles in the environment.

­­­­Scenario #2: Home Invasion

At home, noise coming from a young boy’s room. A female resident goes to the child’s room to see what is going on; however, she does not return nor does she respond when asked what is happening. The electricity to the house suddenly cuts off. As the student approaches the door, an unknown male immediately tells the student to come into the room. As the student looks into the room, on the right is a male with a pistol in his hand climbing into the room via a window and the female resident standing frozen in front of him. On the left side of the room, another male is holding a pistol to a young boy’s head. The student must solve the problem.

Several students tried to negotiate with the threatening home invaders. Of course, politely asking home invaders to leave or release their hostages is unlikely to enjoy much success. Playing the role of the threat, I started counting down while threatening to shoot the child. These students ultimately fired on the threats; however, once again technique went out the window under stress and the students achieved few hits.  

One student shined her flashlight into the room, noted both violent criminal actors and the hostages, and then turned her flashlight off and stood on the side of the doorway. I started counting down while threatening to shoot the child. The student continued to stand frozen. When I asked why she was doing nothing, she replied that she did not believe she could make the shots. I knew she could if she concentrated and talked her through making successful hits.

A couple of students immediately responded to the threats and opened fire. Only one managed a peripheral hit, so the success rate for the engagements was very low. One assistant instructor completing the scenario held the flashlight in front of his face while shooting (and missing). I asked what technique he was using he replied, “Huh, I guess the nose technique?” One assistant instructor successfully completed the scenario and made his hits on the home invaders.

Lessons from Scenario #2:

You must practice low light techniques to have any hope of using them under stress. As we’ve discovered, students simply don’t master the low light techniques from class--you cannot practice it once and get it down pat. Using a light in conjunction with a handgun is difficult and it requires practice. Thankfully, you can practice the techniques with live fire during daylight if your range will not allow night shooting. 

So how do you practice engaging multiple threats and shooting on the move with these techniques? If your local range has IDPA matches, shoot the course of fire using your flashlight if the match director will permit it. Your score probably will not win the match; however, you will learn how to shoot and manipulate your pistol under some stress. Remember to practice turning the light on and off.  

Practicing how to search a structure (like your house when nobody is home) in the dark is important as well. Do this empty handed, with a blue gun, or with an UNLOADED PISTOL (check it 3 times!). This helps you identify how the various angles and corners in your house make one technique a better option than the others.

Conclusion:

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 Punched: Dealing with Police at a Crime Scene

Penn waving at police while holding a pistol

Kevin Penn, a liquor storeowner in Decatur, Alabama has sued a police officer who punched him in the face and broke his jaw during the police response to a robbery on March 2020. The suit in federal court alleges that the officer violated Kevin Penn’s constitutional rights by illegally seizing and falsely arresting him and claims that the incident is an example of the Decatur Police Department’s systemic use of excessive force.

A summary of what allegedly occurred during the incident:

Penn had called police after he trapped an alleged shoplifter with an electronic lock and the individual was laying on the floor with Penn holding him at gunpoint. A surveillance video shows Penn unloading his pistol and placing it on a counter as police approach. The officers told Penn to get away from the pistol; however, Penn very aggressively yelled at them stating, “I am allowed to have my gun.”

During a press conference concerning the incident, Decatur Police played a bodycam video that appeared to show Penn then move his hand over a pistol laying on a counter next to him while holding a magazine with his other hand. In the blurry video, Penn certainly appeared to be reaching for the pistol when Decatur Police officer Justin Rippen punched him, wrestled him to the ground with other officers, and then arrested and charged him with obstructing a robbery investigation.

So how do you avoid a punch in the jaw during a police encounter?

When police arrive at the scene of a crime, the officers are in charge. They must secure the scene, determine what happened, identify who may be a criminal and who may be a victim, collect evidence, and a myriad of other tasks.

In Texas, a private citizen does not have a right to continue to possess a weapon at a crime scene if the police decide to disarm the citizen. Texas law for example provides police with the authority to disarm a person at any time if the officer:

    -- Is discharging the officer’s official duties; and

    -- Reasonably believes disarming the person is necessary for the protection of the person, the officer, or another person. 

The law requires the officer to return the handgun to the person who was disarmed before allowing the person to leave if the officer determines that the person is not a threat to the person, the officer, or others, and if the person is not arrested.” (see the HB 1927 amendment to Article 14.03 of the Texas Code of Criminal Procedure).

It is not clear from my research whether Alabama has a legal provision similar to that of Texas. The 2016 Alabama Code, Title 31 - Military Affairs and Civil Defense, Chapter 9 - Emergency Management, Section 31-9-8 - Emergency powers of Governor does permit a person whom the police have detained to be disarmed under certain circumstances similar to Texas law. However, it is unclear whether this applies to all citizen/police encounters or just those during an emergency.*

Regardless of whether the law technically provides a right to continue to possess a firearm at a crime scene, common sense must apply in these circumstances. Failing to comply with police orders and confronting a police officer who tells you to drop a weapon is a great way to be shot or punched in the jaw. In the picture below Penn is walking away from police with a pistol in his hand. The time to argue your rights comes later—not at the crime scene.

Responding police can see Penn at this point

So what should you do in similar circumstances? As soon as the first identifiable uniformed officer arrives, he or she has command of the situation. Immediately obey the officer’s commands without argument or hesitation.

Before the officer’s arrive, move to a good cover position ideally where you can see the bad guy as well as responding police. If no cover is immediately at hand, put some distance between you and the downed bad guy. If possible, you should chose a position from where you can see the police before they see you.

The ideal circumstance when encountering police responding to a crime scene is to have your hands empty. You want to present a non-threatening appearance to responding officers; you absolutely SHOULD NOT have any type of firearm in your hand as the police arrive at the scene. Police may shoot the second they say “drop the gun!" if you do not instantly comply.

If you have holstered your pistol but feel that you must have your hand on it due to the potential of a continuing threat of deadly force from the bad guy, slowly remove your hand the instant an officer arrives on the scene. If an officer you did not see confronts you and demands you show your hands, tell the officer: “I’m going to lift my hand without the pistol.” This is one reason I prefer carrying concealed is that as you see an approaching officer you can simply remove your hand from your pistol that is now concealed from view. 

Was the officer’s punch in this incident excessive force? That is for the court to decide. Based on the surveillance video, Penn certainly had time to holster his pistol and meet responding police with empty hands. I believe the encounter with police would have unfolded very differently if he had cooperated with the Decatur Police rather than aggressively confronting them.

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*Alabama Code Title 31. Military Affairs and Civil Defense § 31-9-8 d. (2) A law enforcement officer who is acting in the lawful discharge of the officer's official duties may disarm an individual if the officer reasonably believes that it is immediately necessary for the protection of the officer or another individual.  The officer shall return the firearm to the individual before discharging that individual unless the officer arrests that individual for engaging in criminal activity or seizes the firearm as evidence pursuant to an investigation for the commission of a crime or, at the discretion of the officer, the individual poses a threat to himself or herself or to others.

Woman Pointing Gun’s Laser Sight For Cat to Chase Shoots Friend

Another "Stupid has no limits" event. The shootee in this incident said he thought he had unloaded a pistol before allowing the shooter to play with it. 

Police said that the intoxicated shooter turned on the laser sight and was pointing it at the floor to get a cat to chase it. According to witnesses, as the shooter was pointing the pistol between the shootee’s legs, the pistol “went off.”

It turns out that the shootee was himself out of jail on bond and facing nine counts of recklessly endangering safety while armed and could not legally possess any weapons. In addition to being shot, the shootee now faces more firearms-related charges. 

Remember:

-- Firearms are not toys

-- Intoxicated people must not handle firearms

-- Firearms don't just "Go Off," people putting their fingers on triggers and pulling same cause firearms to fire. 

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Don't Shoot Yourself!

In a basic class, I was teaching how to properly load and unload a semiautomatic pistol using the MRI mnemonic of Magazine, Rack, and Inspect for loading and unloading. A student commented, “I wish I’d known that before I shot myself.” His comment naturally caught my attention and I asked, “You shot yourself? How did you do that?”

“Well, I was unloading my pistol and I did exactly what you just said not to do. I racked the pistol and saw a bullet come out, I removed the magazine, pointed the pistol at the palm of my left hand, and pulled the trigger. The hollow point, 45 ACP bullet passed through the fleshy part of my left hand and did very little damage—I was lucky. Before you ask, I have no idea why I pointed my pistol at my hand. I know better, I was thinking about something else and not paying attention to what I was doing.”

GSW Entry                                   GSW Exit  

We all have mental lapses, that is why we have the four firearms safety rules. They are:

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

-- Always point the firearm in a safe direction — this is dependent upon the environment and circumstances.

-- Keep your finger off the trigger and out of the trigger guard unless/until you are intentionally firing a shot.

-- Be sure of your target and what is beyond it

The MRI process is an additional safety layer for administratively loading and unloading a pistol (or other semi-automatic firearm). If you follow the MRI steps without fail, you are not going to experience an unexpected bang.

First, assume a firing grip on the pistol (trigger finger properly indexed on the frame) and point the pistol in a safe direction. Then apply MRI as follows for unloading:

M – Magazine: remove the magazine if there is one inserted 

R – Rack: (Pull) the slide to the rear and lock it to the rear

I – Inspect: Visually and physically confirm that the pistol is in fact unloaded

Notice, at no point in the MRI process does your finger go on the trigger. If you must drop the hammer or striker for some reason, physically and visually double check and ensure there is no round in the chamber before you touch the trigger.

A trigger guard holster (I’ll abbreviate it TGH) is another measure we can take to force us to pause one last time before the trigger is accessible in the loading or unloading process. Trigger guard holsters are designed for very specific applications in non-permissive environments and I do not recommend them for every day carry; however, they have another useful application. Many manufacturers make trigger guard holsters and there are a variety of designs. Since I do not use it as a holster, I go with a simple design that just covers the trigger guard.

A Sampling of Trigger Guard Holsters

 

 

The TGH does exactly what the name implies—it covers the trigger guard. When you are loading and unloading your pistol anywhere other than a range, the TGH prevents you from touching the trigger during the process thereby serving as an added safety measure. When I am loading or unloading my EDC pistol at home, I first attach the TGH and then perform the task.

Separately, the TGH is also useful when you are administratively holstering or unholstering your EDC pistol. If I am holstering the pistol for carry, I remove the TGH and place the pistol in the holster. If I am unholstering my EDC for the evening, I attach the TGH and then place the pistol on the nightstand. (Note: All members of my household are responsible adults. If children were present, I would not keep a loaded pistol accessible on my nightstand.) Using the TGH is a deliberate act that encourages you to pay attention to what you are doing.

I added a glow-in-the-dark paracord lanyard to my TGH (you can buy the paracord online). The glowing paracord enables me to determine the pistol’s location in the dark and it retains enough glow that it is visible throughout the night. In the event that something wakes me and I must grab my pistol, the TGH prevents me from inadvertently touching the trigger. The glowing paracord tells me exactly where the pistol is located and where to grab the cord if I do need to expose the trigger.

Glow in the Dark Paracord

When placing the TGH on the pistol, always come straight up from the bottom of the trigger guard—never from front to back. Although a properly designed TGH does not touch the trigger, coming straight up when placing it on the pistol makes inadvertently pulling the trigger when placing the TGH almost impossible. When removing the TGH, simply pull straight down. These techniques for placing and removing the TGH also ensure that your hand does not stray in front of the pistol’s muzzle.

For more on the MRI Process and TGH use

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