Shooting Someone Who is Not a Direct Threat

Shooting Someone Who is Not a Direct Threat
By: Cody S. Alderson(06/17/2011)

This article is in direct response to a question posted on my Facebook page. I have invited readers to post their questions so that they might be answered in this article series. The first question to be addressed is one about shooting a person who has just shot another person in a public place but has not threatened anyone else. Here is the question:

If you were eating in a fairly busy restaurant, and a gunman came in, grabbed a woman and shot her (probably his wife), would it be legit for you to take him out? Since he had not bothered you or even looked at you, would it be legal or grandstanding?

This type of question is one of the top questions asked by people who have a permit to carry a concealed handgun. It is also one that sparks a huge amount of debate. I take a very conservative standpoint when teaching on this subject. Laws vary from one region to the next, so I can in no way deal with any legal issue that may arise from these questions. I am only offering an opinion based on what I understand of the laws as an average citizen of my own state of residence, and I am not telling anyone to do or to not do anything.

I heard of a statute in the state of Alaska that requires motorists to offer assistance to stranded motorists. I am not aware of any other state that has such a statute. It makes sense for Alaska in that a stranded motorist could die if stuck in a vehicle in the climate extremes typically found throughout the state. For those of us who decide to render first-aid or CPR to someone, there exists the Good Samaritan law. As long as the person rendering aid does not go beyond the scope of their training and is not grossly negligent, there is some protection offered by the law to those who try to save a life. In training, it has been told to me by instructors that for professionals such as EMTs, paramedics and medical doctors, there is a requirement to render aid. The average citizen does not have to render aid such as performing CPR, and there are no legal repercussions even if the victim dies.

That is just the basics of some of the intricacies of statutes I have heard about. If I pass by a stranded motorist while driving in Alaska I would be breaking the law, but I only heard about the law because of reading books about the state. I wonder how many concealed carry permit holders are unaware of specific statutes of their own state and other states that allow permit reciprocity. I am not a professional emergency care provider, but I have been trained. I can choose to render aid or not without violating the law. If I do render aid, I have some protection under the law. I wonder how many concealed carry permit holders are under the impression that there is some legal requirement for them to use their gun in a specific situation.

That actually is one law I have not heard about. I have never heard of a law that requires a concealed carry permit holder to engage any lethal threat regardless of whether the threat is to himself or others. I have read all kinds of different statutes from different states, but I am certain it is easy for me to have missed such a law existing somewhere. I heard of the ordinance in the town of Kennesaw, Illinois passed back in 1982 that requires residents to own a firearm. Still, even that law doesn't make the residents sworn law enforcement required to act in order to preserve and protect the public peace. I could decide to engage a lethal threat such as someone randomly shooting people in a mall, or I could decide to escape since my gun permit does not sanction any police powers or any sworn duty to act as an officer of the law.

Here is the crux of the dilemma. There exists a moral obligation to protect our fellow man. However, doing so can cause a defender serious injury, loss of personal property, loss of real estate, loss of savings, forfeiture of future earnings, loss of liberty and even death. The bottom line is tough to address in a public venue because anti-gun groups latch onto the fact and misuse and misquote it. The fact is that there are those who get a permit to carry a gun and suddenly think they have police powers. The truth is that they do not have any police powers. I will say that again and personalize it— you do not have any police powers as a citizen with a permit to carry a concealed handgun. There are still companies out there selling so-called “concealed carry badges.” In my opinion, they should be legislated against, and I'm a conservative! There should not exist any product, gun school curriculum, books, articles or anything that remotely intimates that a citizen with a gun permit should even slightly act as if they are law enforcement.

I read the first question as the lethal threat has ended since the author of the question stated, “Since he had not bothered you or even looked at you . . .” We could debate whether the threat still actually existed or not, but in this context I am taking it that the reader wants to know if it is okay to shoot the guy who just shot a woman even though the shooter is no longer actively threatening anyone. This is one of those questions that has minds reeling trying to ascertain from the scenario what the shooter is going to do next. That is just as impossible to decide from the context of the written question as it would be if we were actually at such a scene in real life.

We would go by cues the shooter is giving. If he dropped the gun and walked out, I would see it as being very difficult to explain to a district attorney why a permit holder with a gun shot him in the back. If the shooter turned toward the defender who has a gun and a permit and began to raise his gun toward him, the scenario changes to one of immediate threat of being killed. One thing probably only a few have considered is that maybe the shooter was actually himself responding to a lethal threat. Did the woman have an as yet unseen gun on the guy under the table pointed at him and threatening to kill him?

This scenario also indicates that the person asking the question would already be behind the action curve of the situation with his gun still in his holster while the shooter has a gun proven to be fully functional already in his hand. Truthfully, my first thought would be for cover for myself and any loved ones with me. In this scenario of a shooting in a public place, my hierarchy of deciding who I would protect would be self and loved ones first. I am only one person and since I also have a gun, I have to preserve myself first in order to be able to successfully protect anyone with me. In protecting those with me, it would follow a rule of hierarchy for loved ones first followed by friends and then strangers.

As soon as the gun went off, I would look to see what is occurring without putting myself in the line of fire while seeking cover and escape opportunities. A gunshot inside a building will make me have that initial reaction like there is when the monster grabs someone in a scary movie, but I am used to gunfire. I can readily identify gunfire. I won't be saying to anyone, “Was that a gun?” I will be assessing and ordering those with me immediately and as the scenario unfolds. My intent would be to evade becoming a target since I had failed to avoid the situation in the first place. While endeavoring to evade, I would seek to escape safely with those with me and defend as a last resort. Engaging a shooter who has already fired or is firing a gun is not something to take lightly. Real life is not television.

Civilians who go about lawfully armed should practice to avoid, evade, escape and finally to defend. In this situation, avoidance was not an option for it happened while I was already there. This then turns my mind to evading being targeted followed immediately by seeking a way to escape the danger zone. If there is no other recourse than to defend, then I will do that. The move through avoiding, evading, escaping, and defending is dynamic and can change in a split second. Opportunities to get to a condition of no threat is what is being sought. I will repeat that as well so its importance is established. A condition of no threat is what is being sought. We are not seeking to shoot anyone, even if it was a guy who just shot his wife because he wanted to. The only goal is to go home with everyone you brought with you—loved ones first.

Some states require an attempt to escape before using lethal force. Some do not. Let's say that the scenario played out where the defender shot the man who shot the woman. Let's say it played out in court that the shooter was the husband of the woman who abused her for years and had threatened to kill her on numerous occasions. Let's say the defender shot him though witnesses said the man who shot his wife had his gun at his side pointed to the ground and was walking out. Witnesses also say that the defender ran up to the man and shot him five times in the chest. The district attorney may decide to not pursue charges due to the backlash of the court of public opinion. It might be an election year. On the other hand, the district attorney may decide to follow the letter of the law and charge the defender with some homicide charge due to witnesses declaring the defender nor anyone else was being directly threatened.

Do you want to play the odds of how the court will view your actions? Wouldn't it be better to be able to go home with your family and self intact with no legal charges looming or any bullet holes in yourself? Is there a scenario where you are willing to become a martyr? Have you ever discussed with an attorney things such as the implications of hunting down a mall shooter as a citizen with no police powers to end the massacre? That's exactly what one would be doing if he saw a shooter in a mall killing people and going in the other direction not threatening him. What if a man was in one store and his wife and kids were in another one closer to the shooter? Changes things, doesn't it?

Let's say this restaurant shooter turned his gun toward other patrons but you knew with a high degree of certainty due to where you and your wife were sitting that you could safely get outside before he could turn his gun on you. Would you leave or engage the shooter? If you engage and are successful, you might be the hero of the week. If you fail, you and your wife are two more victims. You are dead. There is no going home. Your kids or other loved ones spend the rest of their lives without you. Tough world, isn't it?

The simple facts are that when a defender kills another person, it is a homicide. The top law enforcement person in the jurisdiction will look at the provable facts of the case and decide whether or not there is reason to pursue charges or to declare it a justifiable homicide. People hear terms such as, “It was a clean shoot,” or “It was the right thing to do.” The bottom line is that it was still a homicide. Now the court decides your fate based on things it can prove in court. Honestly, some of the things proven might not even be true. However, it is whatever version of the truth that the jury or judge can be convinced of. Witness statements, forensic evidence, security cameras, coroner's inquest and the defender's own statements will all go into the decision of whether or not the defender will be charged or declared to have killed for a justifiable reason.

I have always answered for these types of scenarios that are declared in the fundamental manner that a shooter killed someone but there was an avenue of escape for myself and those with me that I would choose escape first. Every single time I make that statement, there are several who speak up and declare that they would stay and protect others. I hear how they would do this or do that, and how they would use this training or that training to engage the shooter because it is morally correct. Some folks have spit flying and hands and arms waving declaring step by step what they would do in a situation that is not even real. I have heard guys say how they were in the military and have training to handle these types of situations. That's all well and good.

However, my training philosophy is to avoid, evade, escape and if required, defend. My goal as a teacher is to get people who are in the midst of a lethal threat encounter home intact with everyone who was out with them. It does not involve acting in any manner whatsoever as a sworn officer of the law who is required to preserve and protect the public peace. There are plenty of what if questions that can be tacked onto hypothetical situations. In this case, the person who posed the question declared that the threat was over after the woman was shot. Legally it appears that there is no reason to shoot the shooter unless the situation changes. Be aware though that a real life situation like this can change in a microsecond.

Cody S. Alderson is a long-time regular contributor to The United States Concealed Carry Association. He is a private consultant and author based in southwestern Pennsylvania. You can contact him at www.aldersonarts.com or on Facebook at Cody S. Alderson