Shoot to … (kill/wound/stop)?

(FYI, this and every blog you’ll ever read, should not be taken as legal advice.  If you have real questions, ask an expert.)

One of the trick questions that I usually ask my Level 1 students is “so, do you shoot to kill or shoot to wound?”  Here’s how the answers usually break down:

  • About 80% will say we shoot to kill
  • About 19% won’t answer or simply have never thought about it before
  • Then about 1% go completely off-script with “neither, we shoot to stop a threat”

But let’s investigate a little further.

Obviously, the reason I ask that question is to make a legal point for people that don’t usually think of their lives in legal terms.  Well, when you have a gun, EVERYTHING is in legal terms, like it or not.  If you’re not 100% up-to-speed with the law, with where you can-and-can’t carry, with how to claim self-defense, with what to tell the police… you’re potentially setting yourself up for a bad decision – which could really cost you tens of thousands of dollars and potentially unnecessary time in jail – maybe significant time.  So you can’t skate through this anymore, you MUST be a professional!

Before I go any further, I have to give a lot of credit on this subject to Adam Weitzel, our attorney who teaches our Law of the Gun class, Massad Ayoob for countless talks and blogs and books on this topic, my friend Marc MacYoung for letting me bounce random thoughts off of him over coffee (for a REALLY good article about all of this, check out some of Marc’s thoughts here), and especially Kathy Jackson.  Check out Kathy’s excellent blog post on the subject here.

But back to the subject at hand, a majority of people are very quick to answer with “we shoot to kill.”  So what does that actually mean?  In my opinion, when most people say that, what they’re actually thinking is “where should I aim?”  Most of us understand that shooting a knife-wielding attacker in the pinkie toe isn’t very likely to stop the attack, so we choose a more efficient target (like the cardiovascular triangle).

Quick interlude: shooting to wound is a horrible idea.  There’s no two ways about it.  There’s nothing like telling a jury “well, I didn’t like where the confrontation was headed, so I wanted to shoot the guy, but I wasn’t really in THAT much danger or I’d have actually tried to stop him, so I shot him in the pinkie toe.”  What they’ll hear is “blah blah blah, I wasn’t in fear of my life, blah blah blah.”  Which reminds me of this:

What dogs hear

Who doesn’t love cats?

So no shooting to wound.  Besides, what if we aim for the kneecap, we actually hit him in the kneecap, and then he gets a blood clot and still dies?  What good can possibly come out of that?  But I digress.

But so far, I’m with you on thinking like this.  But walking into a gunfight with the attitude of “I shoot to kill,” could lead you to this:

Go back and watch that video again.  Here’s what I noticed:

  • Two bad guys came in to a pharmacy with bad intentions, at least one of them had a gun (legally that may or may not matter, but still)
  • Jerome Ersland, the pharmacist, shot one of the bad guys from across the pharmacy and that guy falls unconscious onto his floor
  • The second guy takes off running
  • Jerome chases the second guy out of the store, allegedly firing shots at him on the sidewalk (legal problem #1)
  • Jerome then returns to the pharmacy, moseys back to the back of the store where he presumably reloads
  • Keep in mind he has an unconscious person bleeding on his floor this whole time
  • He then walks straight up to the unconscious person and executes him point-blank (legal problem #2)

This story got a TON of attention, mainly on “gun boards” and blogs like this one.  Much of the argument in support of Mr. Ersland was that it was all “in the heat of the moment,” and “there was no way for him to stop when he still had a bad guy in his store.”

A jury, however, decided that when you have an unconscious person bleeding on your floor, sauntering over and executing him point-blank was a separate event than the justifiable shooting event that started all of this.  What happened to Mr. Ersland?  Convicted of 1st degree murder – life in jail.

Obviously you and I weren’t in the pharmacy that day.  But it doesn’t mean we can’t learn from what happened.  It appears to me that Mr. Ersland had a going-in philosophy of “shoot to kill.”  If he had started with a “shoot to stop the threat” mindset, it’s possible that he could have walked away from this event as a hero – and not ended up in jail.

So to clarify, when Mr. Ersland shot at the first bad guy, that was a justifiable shoot.  His life was in jeopardy at that point.  When the second guy ran away, guess what – you won!  In that instant, it appears that there was indeed NO THREAT – of the two attackers, one was unconscious and the other had left the area.  Congratulations!

Granted – we want to make damn sure that one of the previous threats doesn’t reappear.  But we also want to get help here ASAP.  Keep an eye on the door and the wounded man on your floor, then call the cops.  Yes, this is me playing Monday-morning-quarterback.  But if we can’t learn anything from these stories/videos, we’re destined to repeat them.

Contrast the previous video with this one:

Personally, I could not care less WHY the threat no longer exists.  Whether the attacker turns and runs, he falls unconscious, he trips over a table and knocks himself out, he suddenly has a change of heart, he sees his parole officer coming around the corner, the angels in his head tell him to go for a pizza instead, or yes, even if he dies, I’m good.  My goal is to go home to my family every night.  If attacked, I WILL defend myself.  But once the defense is over, my goal is to get law enforcement and the law on my side (via my attorney), then to go home to my family.  Again, if there’s a threat and I draw my gun, if anything happens to stop the threat, there’s no reason to continue the action.

So I encourage you to consider thinking “I shoot to stop a threat.”  Then once that threat is over, pack it up and get on with your life.

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4 comments on “Shoot to … (kill/wound/stop)?

  1. Jim Konzak says:

    Jeff:
    In the Internet Cafe video, it looks to me like the elderly gentleman fired (at about 0:50) as two perps were leaving the cafe in haste. Isn’t he VERY lucky he wasn’t prosecuted for that last shot?
    Prior to that, it sure looks like clear self-defense. I’d love to hear Adam’s thoughts on that…

  2. Jim – great point, and I’ll be honest, that part makes me squirm. To me, he was kinda *right there* at the edge of “legally allowed vs. morally should.” Every situation is so different, and yes, it’s very easy to play Monday Morning QB with each one of these. And I think you touched on a very valid point when you watch videos like these in the future: what would *you* have done? What *should* have happened?

    I will say that in that particular video, the police dropped all the charges against the guy and ended up calling him a hero. But remember, I don’t show these nearly so much to show “right way vs. wrong way” as I do to highlight different situations and how the law responded. “Legal” really is a lot more of a concept than something specific – every situation is just so different.

    So my takeaway was something along the lines of “defend your space,” which he certainly appeared to do. But chasing them down the street then, in my mind, changes it from a defense scenario to one of offense.

    Excellent question. Thanks!

  3. Steve says:

    Very timely post, Jeff. I saw this article today (http://www.washingtonpost.com/local/loudoun-homeowner-shoots-kills-intruder/2013/03/17/6d1f1db4-8f10-11e2-9cfd-36d6c9b5d7ad_story.html) and was quite amazed at some of the comments from readers. “Warning shot”, “shoot him in the leg”, are just some of the items under discussion. An interesting read that gives some good real world insight to your post.

  4. […] Ok, since I have a blog now, I’m going to do a better job keeping track of some of the crazy/unusual questions that I hear in class.  And don’t confuse this blog with “do I shoot to kill?”  I wrote a whole blog on that already. […]

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