Concealed Carry Lesson: Retired Policeman Shoots Man Texting in Theater [POLL]

Justifiable Use of Deadly Force or Not?

Justifiable Use of Deadly Force or Not?

What about this scenario below? It is strikingly similar to a recent January 2014 incident that is currently ongoing in Tampa, Florida. The facts of the actual situation are uncertain at this time and are being investigated. There are many legal and moral considerations, situational variables, witness statements, and facts we as concealed carry licensees may not be aware of now. Certainly I am not practicing law and am not offering legal opinions. We do know that the retired police Captain is being held without bond and the case is just commencing. The retired policeman shooter may be facing a minimum of 25 years in prison for second degree murder. Recognizing that we have to be very careful about our assumptions, the unknowns, and interpretations now, can we as concealed carry licensees and peace-loving patriots learn from this single terrible situation. Maybe we don’t have enough information now to make prudent decisions, but for general education purposes lets proceed. What are the lessons here and precautions for us as individuals with concealed carry licenses? What variables do we need to consider that a court might consider? The age-old questions linger: What would you do? Was the shooting a justifiable use of deadly force?

The Scenario

You are a 71-year-old retired police Captain with your wife getting ready to enjoy the movie “Lone Survivor” and eat your popcorn at a Tampa, Florida movie theater. You have your concealed carry license and are legally carrying your handgun. A young, muscular married man and his wife are seated in the row in front of you. The young man is texting on his cell phone while you are watching the previews. Two times you ask him to please not text. He persists and you get up and go tell the manager. When you return, there is a confrontation. It escalates and the young man grabs your popcorn and throws it at you along with his cell phone. You believe you are under attack and are afraid this younger man will beat the heck out of you. So, you pull your concealed carry gun and shoot him. He dies. Were you justified in your use of lethal force? If you had it to do over, what would you have done?

Surprisingly, the situation was partially recorded in the theater by an infrared video security camera. It is a little hazy, but is something to observe with a guarded interpretation to help you answer the key questions above. See the YouTube video:

We know that even for blatantly-obvious bad guys and bad gals, deadly force must be recognized as a LAST RESORT for use only when we need it to save your LIFE. If you are going to carry and/or use a gun for self-defense, in addition to being well trained in the safety rules, the basics of shooting, resolving malfunctions, accuracy fundamentals, and tactics, etc., you should be trained and understand the circumstances under which the use of deadly force is warranted, both legally and morally. (See my previous USA Carry article – General Legal Considerations for Use of Firearms in Self-Defense.) Many times this is muddied and unclear from a legal perspective. As difficult as it may be sometimes, we should NOT respond with deadly force when we are emotional.

Realistically there probably is not such a thing as a universally-accepted justified or “Good Shoot” or even an in- concrete “reasonable” justification of your use of deadly force in ALL situations, because that is determined by the judge and/or jury… and influenced by your defense attorney, the prosecutor, and interpretation of the many involved and complex factors. It is my lay, non-legal opinion that this subjective interpretation variable does exist, even in the face of written, in black-and-white, specific laws and “facts.” What is “reasonable” for one, may NOT be “reasonable” for another. That appears to be the case in this scenario. What was reasonable at the time for the retired police Captain was certainly not reasonable for the deceased. The shooter must have reasonably believed that he was very likely to be killed or suffer serious bodily damage. . In general, the judge and/or jury will ask some variation of this question: “Would a reasonable and prudent person in the same situation, knowing what you knew and nothing more at that time, have made the same decision you made?” 

Generally in a situation involving firearms, an Aggressor, and the use of deadly force in self defense, the author (again, I’m not an attorney & this is NOT LEGAL ADVICE) believes for a legal shoot that ALL 3 of the below criteria MUST BE PRESENT. These are based on what noted firearm expert Massad Ayoob and other firearms trainers refer to as the triad of Ability, Opportunity, and Jeopardy. 

1) Ability  =  Means— Aggressor has (or reasonably appears to have) weapon or power to deliver force sufficient to cause death or grave bodily harm… or bigger size, strength, weight, or height than you, or has special tactical training (judo, boxing, martial arts, etc.) that you don’t have. So, a garden hose (means) attack against you does NOT justify your use of deadly force;

Decision: Ok, so what is your decision here? Did the young and muscular aggressor have the the “ABILITY” to kill or injure the retired police Captain? Witnesses say the aggressor was younger and bigger than the retired policeman and was very angry. 

2) Opportunity  =  Proximity— Aggressor is nearby within (generally) 21 feet of you or approaching toward you or in position close to you to immediately employ force.

Decision: What is your decision regarding this variable? Was the aggressor at a distance that he could use the means to cause death or grave bodily harm? 

3) Intent  =  Jeopardy— Aggressor is verbally or physically threatening you, trying to shoot you, kill you, or interact with you to cause you or a family member serious bodily harm or death; acting in such a manner that a “reasonable person” would conclude that the Aggressor has the intent to kill or cripple. Hostile words or actions. 

Decision: Your answer? Was the retired policeman in genuine danger of being killed or seriously harmed or injured by the young man? In actual testimony the policeman said “… I thought the guy was going to beat the sxxx out of me.” Some media report that the policeman testified that he thought he was struck and some report that the strike was actually the young man throwing his cell phone at the policeman.  If this is reality, could the policeman have honestly believed that the aggressor was throwing the cell phone and popcorn at him in advance of a serious physical attack? A lot of uncertainty and supposition. Again, much we do not know for certain, so this is your OPINION at this time.

I am very generally familiar with a Florida statute that concerns assaults on persons age 65 or older, making it a Felony for even battery, let alone aggravated assault on a senior citizen. So this non-legal layman wonders if it is even a possible defense for the use of justifiable deadly force by this 71-year-old man, if the aggressor was committing a “forcible felony” or any felony by using or threatening physical force or violence against the elderly policeman. Who knows; just a thought. This is Florida Statute 784.08, Assault of Battery on Persons 65 Years of Age or Older.

So would a “reasonable person” fear for his death or great bodily harm and conclude that he was in genuine jeopardy in this situation?  This is usually a major element for assessing if a shooting is ruled “justifiable.” 

Rather than shoot, would a “reasonable person” simply have changed seats in the theater, called the police, or left the theater, if he felt threatened? Maybe used non-lethal force, like pepper spray. Recall, the policeman supposedly did inform the theater manager. This behavior of not retreating or leaving could be a major concept for the judge and/or jury to deal with. Maybe for you as well. The policeman actually made a damaging statement for his defense: “If I had it to do over again, it would never have happened. We would have moved.”

Well, I hope you made the right decision for yourself and learned some things. I know I have. At least, we thought rationally about this real scenario and considered the many situational variables. But we did have the time to do that in a relaxed setting without the immediate pressure to respond correctly and appropriately. Under time pressure to respond immediately in a second or two, we may have made a different decision. So, that tells me to try and anticipate some common encounters and decide ahead what I would do, keeping my number one objective in mind (to stay alive and protect my loved ones FIRST.) However, we cannot anticipate all possible encounters or even many. I do know for myself that I am not trying to be a savior for all of mankind or right all wrongs. Of course, who knows for certain what their reaction would be in an emergency. But there is a mindset that generally guides you. Probably you have learned like I have, especially when carrying a gun, that it is best to be calm,  AVOID stressful situations like this (if possible), and keep your emotions, machismo, and ego in check. Some think it is a sign of weakness to retreat or avoid an encounter, but you have to keep your goal of staying ALIVE as top priority… and recognize that bad things happen to well-intentioned good people. You may be right and the other individual may be wrong and a complete irrational jerk. But, you have to think rationally about the repercussions to you, your family, and the deceased’s family, time and cost considerations, possible separation from your family and being away from your job if arrested, while you are proving your innocence, and not respond emotionally.

A final consideration is what if you hesitate to AVOID any situation? “What If” the aggressor in a similar situation had a gun or weapon (ABILITY-MEANS) – (not just bigger size and physical strength) of some sort, you did not know it, and you did not initially respond with deadly force. It is obvious what probably might result. So given the fine tightrope line of immediately responding or hesitating in a perceived “deadly” encounter, it comes down to SUBJECTIVE interpretation in the flash of a very few seconds. What a very frustrating, challenging, and almost no-win situation. No one can dictate or even suggest what is the best course of action for anyone else.

So if you were in this movie theater situation as presented and were assaulted by the aggressor, as much as you wanted to respond with lethal force, are you disciplined enough to not do so? Are you willing to take the chance and risk 25 years in prison, if the court rules that there was not justification for the use of deadly force?  But on the other hand what if you judged the situation incorrectly, are wrong and the bad guy/gal had a weapon? You could be dead. Again, frustrating, challenging, and no corrective action even possible for you. No one can tell you how to respond. YOU decide for yourself. Think of your objective and top priority and then match your decisions and actions to them. A lot is at stake, not just in this hypothetical situation for you, but for a lifetime.

Continued success!

* This information is provided for education and discussion purposes only. It is NOT intended as legal advice nor legal opinion. The information is not recommendations, suggestions, or options for your specific deadly force situations. The author is NOT an attorney and is offering only his general ideas and opinions, so it is strongly recommended that you contact your own Attorney for legal advice about when and when not to shoot, the use of deadly force, laws and their interpretations and implementation, and the use of any force in your particular state, jurisdiction, and situation. You should know the laws of your particular state and jurisdiction, as they vary considerably.

© 2014 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For information, contact Col Ben Findley at [email protected]

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