An Interview with Massad Ayoob
by Gila Hayes
Law abiding citizens work hard to know the law and operate within its limits. Sometimes, though, when the law is silent on an issue, Network members are not sure what duties are required, and never is that truer than in the question of when, why and how verbal warnings should be issued before shooting. I have long said that the Network is not in the business of teaching tactics, to which some have retorted that what to expect from the criminal justice system after a use of deadly force incident influences their tactics. With that in mind, we engaged internationally recognized firearms and use of force instructor, expert witness on use of force matters and Network Advisory Board member Massad Ayoob in a discussion of verbal warnings within the context of a self-defense incident.
eJournal: Members have asked whether they have any duty to give verbal warnings during use of force in self defense, and how to balance that against any tactical disadvantage suffered by giving away one’s position or other factors like revealing possession of a firearm. It is a difficult question from a legalities viewpoint, because there simply is not statutory law speaking to any such requirement.
Ayoob: I don’t think you are going to find anything in the case law, either, nor in the instructions to the jury. It is going to come under the totality of the circumstances.
Don’t blame me for that buzz phrase–it comes from the courts. The courts judge things within the totality of what the situation was. Even in a non-retreat requirements state, they are going to ask, “Did you keep the ball rolling? Could you have stopped this and choose not to or were too stupid to?”
If it comes out, perhaps, that verbal warnings might have been practical and could have been done in time, it may be an issue. Usually it is not. Usually, once the shooting starts, things have broken so fast that you really can’t find the time to give the guy Hamlet’s soliloquy.
eJournal: Acknowledging that we are not bound by statutory law to give warnings along the lines of, “I’ve got a gun, don’t come any closer,” when you say “it might come up,” in what context would failing to give a warning create problems?
Ayoob: The family of the deceased sues you after you shoot the home invader. We have all seen these families go on TV after a shooting, saying, “My dear Sonny can do no wrong.” “Sonny didn’t have a weapon, they must have planted it on him because police have been planting weapons on Sonny since he was a juvenile,” and “Sonny was just turning his life around before you gunned him down.”
The same people who will say, “Why didn’t you just shoot the gun out of his hand?” or “Why didn’t you shoot him in the leg?” will also say, “Why didn’t you just give him a chance? Why didn’t you warn him?”
The answer, of course, is, “A chance to do what? He was obviously going to kill me, and when that became apparent, no, I didn’t give him another chance to kill me.”
Does this accusation arise during civil litigation?
Ayoob: I think you will see it more in civil than you will in criminal, but it could come up in either one.
eJournal: In any of the cases in which you served as an expert witness, have you had to counter accusations that your client didn’t give the criminal a chance or didn’t warn that he was armed?
Ayoob: Goodness, yes, it came up in 2012, in Tennessee v. Shawn Armstrong. Shawn was an
estranged, battered wife, the husband had been stalking her, divorce was in process. She had gone target shooting on her family’s informal range on her family’s property. The husband got wind of where she might be and went out there and slashed her tires so she couldn’t escape. When she came down the hill from the shooting range, he confronted her and began beating her and stomping her.
She was carrying a gun, and curled up so he couldn’t get the gun. He left her lying there in a fetal position. She starts to rise to her feet, and as he walks back to his car, he stops, looks at her, and she sees in his eyes the resolution that he’s coming back to do it some more. She draws the gun and before a warning can be issued, if I recall, he comes very rapidly toward her, and when he is about three seconds away, she sees the rage in his face and realizes the one beating apparently is not enough. She opened fire, shot and killed him.
eJournal: Was she still on the ground when she fired?
Ayoob: She was seated on the ground with her legs out in front of her, starting to push herself upright.
eJournal: But not mobile?
Ayoob: Not mobile, and would have had a hard time running because he’d kicked her, among other places, on the leg and she had a bad bruise on the leg. In any case, the prosecutor who, like those I talk about in classes, seemed to major in drama and minor in law, did a very histrionic speech and acted like Al Pacino in The Humbling, [changes voice to basso delivery with extra vibrato] “Sh-e-e didn’t fire a warning shot; sh-e-e didn’t shoot him in the leg; sh-e-e-e shot that man in his chest and put him in his gra-a-ave”–with about three syllables in grave. The simple fact was, we determined he was no more than three seconds away from her and there wasn’t time to issue a warning, there wasn’t time to have a dialogue and it was most unlikely that the dialogue would have done any good.
The ability, opportunity and jeopardy were clearly present. There was another man with him who had not yet joined in the assault but had stood back and watched the assault, so she had to keep him in mind, too. So we had the many elements: he is larger and stronger; he has already beaten her to the ground; the kick in the leg among other things impaired her mobility; she is seated, he is standing; he had the force of numbers; and she knew he had had Army Ranger training and was highly competent in unarmed combat.
We got those points across to the jury, and they got it. Part of my job was to explain there was no time for warnings or warning shots or a shot to wound. The jury got that. Within half an hour, we had the acquittal. So, yes, it does come up.
eJournal: Do you get involved in civil litigation much or are you primarily called when someone is charged with a crime?
Ayoob: It is about 50-50.
eJournal: How does this issue play out in a civil complaint?
Ayoob: There’s one we’re doing now. It began as a “knock and talk” and the subject, when he comes to the door, instantly comes at the police with a weapon that is already in his hand. The other side is making a huge issue of, “Why didn’t you pound on his door screaming, ‘Police, Police!’?” The rationale, of course, is that they were not serving a warrant, it is a knock and talk for gathering information and you don’t do things at that particular hour that will wake the neighborhood that could appear embarrassing to the individual who’s door you’re knocking on. That will be decided this year later in court.
Yes, the lack of a so-called warning and announcement in that situation has become an issue.
eJournal: Outside of your own case files, are you aware of not giving verbal warnings before shooting being an issue in civil claims for damages or should we be more concerned about not doing so adversely influencing a jury in a criminal case?
Ayoob: I think that is the least of your concerns. When I say “totality of the circumstances,” it sounds like I am weaseling my way out of the question, but for example, maybe you think you’ve got someone in the house. If you end up having to shoot him when he kicks down the bedroom door, I would certainly expect plaintiff’s counsel to say, “Well, my poor, misguided deceased client probably would have turned and run if they had just shouted, ‘Get out, I have a gun.’”
And what our side will say, is “Look, your poor, misguided deceased client had broken into these peoples’ home, they had every reason to be in fear for their lives, and if he’d had a gun and they’d screamed, ‘I’ve got a gun’ and gave away their position, he could have started shooting through the door.”
There is always going to be that tactical balance and the individual has to assess the situation and then decide, “Do I want to attempt a verbal warning now or not?”
eJournal: How much of our brain power should we tie up on deciding what to say, when perhaps, as in the case of the battered woman you defended, concentration should be focusing on the “front sight and smooth press” of the trigger?
Ayoob: By the time you are concentrating on front sight-smooth press, the decision to shoot has been made. I don’t see a whole lot of point in trying to talk and shoot. What we have found is that if there is time to issue a warning, it makes it much, much clearer to every one including the eyewitnesses and the ear witnesses who the innocent person is.
Case in point, without mentioning names, we both remember a couple I taught here at Firearms Academy of Seattle many years ago. On a Thursday night, a night when both of them were always out of the house, the wife came home and it was dark, her husband’s car was not in the driveway, but the lights were on inside the house. She gets out of her car. She sees someone moving inside the house, and says to herself, “Let’s see, he doesn’t look like my husband, he’s shorter than my husband, he has a different complexion than my husband, that is not my husband!” Eye contact is made and before she can do anything insofar as calling for help on a cell phone or getting back into the car to drive away, he comes out of the house toward her.
He is carrying a bag of obviously stolen goods, and she knows there are firearms in the house that he has had access to, and she presumes he’s armed with one. She did exactly what we’d taught: she drew her pistol, she covered him, she shouted, “Don’t move!” and while there were no eyewitnesses, many neighbors heard the “Don’t move!” Her second command, if I recall correctly, was what we taught, “Don’t touch that weapon!” So in an instant, every ear witness knows, our female neighbor is facing someone with a weapon.
As he came toward her, she fired; he came toward her again, she fired again. Both shots struck home and the second proved fatal. It never even went in front of the grand jury; the detectives determined it to be a justifiable homicide and so reported it to the DA’s office and the matter was done.
I think in that case, having had time to give the appropriate commands made it clear to the witnesses, clear to the investigators, clear to everyone in the aftermath, who was who. The guy turned out to have a long, serious criminal record, had been burgling the home and had a bag full of stolen goods, and was foolish enough to continue assaultive behavior and died of his own misadventure as a result. I think certainly her use of the appropriate commands helped subsequently make that clear to the investigators.
eJournal: That story actually introduces the first two of the command sequence you teach. It seems to me that you’re teaching an appropriate script for specific circumstances.
Ayoob: Very much so. I think you should use prepared scripted commands for taking people at gunpoint with appropriate branching as the situation demands. I think you should do the same at any emergency scene, including an immediate post-shooting scene, where you have to galvanize onlookers into action because you can’t handle everything yourself–instructing someone to call police and an ambulance, for example.
The initial command sequence that I teach begins with “Don’t move!” when the suspect is at gun point, followed by “Drop that weapon!” if, let’s say, they’re holding a knife, or “Don’t touch that weapon,” if the weapon is in their belt or you’re not certain that they don’t have a weapon. The reason is, when it’s happening, you’ve got too much on your plate to be asking yourself, “Let’s see, what should I say?”
Where you absolutely do NOT, in my opinion, want a tape loop is in the aftermath. Maybe ten years ago, if the cops got to the scene and you said, “I was in fear for my life,” that would have been useful. Today, that advice has become so clichéd, that when a cop hears, [speaks mechanically] “I was in fear for my life,” the first thing that goes through their mind is, “Oh, great! Somebody killed somebody and had a script for what they were going to say to me.” Instantly, the credibility goes down the chute. So, while we give a checklist of certain things students need to establish with the responding and investigating officers as soon as possible, we tell them they need to do that in their own words based upon the circumstances.
Where you absolutely DO want memorized, scripted commands is taking someone at gun point and galvanizing assistance in the wake of any crisis, whether that is a car crash, a medical emergency or a situation where you’ve had to shoot someone in self defense.
eJournal: You got us to “Don’t touch that weapon!” If the assailant is compliant, what happens next?
Ayoob: It is going to depend. I tell my students, you are going to have to use your life experience in reading people. If this guy is just glaring at you with absolute hate and foaming at the mouth and vibrating with energy and you are barely in control, I would leave it there. You have the option of telling him, “Go, go away, get out of here.” Of course, cops don’t have that option; private citizens do. If it is someone that has been a consistent problem, the stalker, for example, this is probably the best chance you have to get him under control, so I would want to keep him at gunpoint until police have arrived. It is going to depend on the situation, it is going to depend on your reading of the suspect.
That is one of the cardinal differences between cops and civilians. Marty and I have a lot of years between us as cops, and if one of us on duty had taken a criminal suspect at gun point, then ordered him to run away, we would have been fired for cowardice and misfeasance of duty. The private citizen has no such duty. For them, it is often the easiest, simplest way to mitigate the likelihood of a confrontation.
eJournal: Many of the questions about verbal warnings indeed come from a lack of clarity about the differences between the duties of sworn law enforcement and the responsibilities of good citizens. Face it, to some degree, we are all “trained” by television. Since most if not all legal deadly force uses portrayed on TV entail police giving verbal commands first, the viewer gets that sequence stuck in their head: give commands before you shoot. They confuse entertainment with the law.
Ayoob: I am not aware of any law that requires a verbal statement. Certainly, if it can be made as in the case of our graduate, it is good if you can. That said, you don’t have to be babbling as you’re shooting. From Ray Chapman to John Farnam, in the old days the advice was, “If you’re going to run, run. If you’re going to shoot, shoot.” Yet Ray Chapman was the guy who came up with what is probably the most effective technique for shooting while you’re moving, held and to my knowledge still holds posthumously the record on the Mexican Defense Course, which involves shooting and moving, and he recognized that sometimes you can’t do the ideal thing, so therefore you’d better find a pretty good, effective way to do the less-than-ideal thing if you have to and be skilled at it. I think Chapman, in that respect, was the living embodiment of that principle.
eJournal: If we apply his inspirational example to this question, perhaps we’d better be prepared to talk if we need to talk, but recognize that shooting may need to follow close on the heels of the warning. But realistically, there are so many hazards a Network member may face, ranging from being robbed in public to the example you used earlier of a violent home invasion. Does location change what we need to verbalize?
Ayoob: Let’s say you’re a couple of doors down at the corner and as you come around the corner, you see a man beating a woman. My reaction would be to maintain a cover position, with my hand on my gun where he couldn’t see it, and shout, “Stop! Step away from that woman.” Now if he raises his hand and in it is a badge and he says, “NYPD Vice. I’m arresting this woman,” it’s going to be one of those moments I’m really glad I did not whip out my gun on him. If we don’t know who is who, we can’t go with stereotypes.
We all figure if we come along and see some big guy beating on some little guy, it is the stereotype of the bully and we are going to be the hero. We have to remember the big guy may be the innocent victim who just knocked the knife out of the shorter mugger’s hand and is trying to keep him from picking it back up from the ground. If we do not know to a certainty, we should not be pulling triggers or even waving guns.
eJournal: In some ways it is a simple subject; in some ways it gets pretty complex. We’ve seen a variety of training methods over the years to accustom students to giving verbal commands at gunpoint. I remember one of your drills, back in New Hampshire many years ago, where you played a very long recorded lecture while we, the students, held a target at gun point and interacted verbally with an imagined assailant.
Ayoob: When that gun comes out, the more time you’re trained with it, including giving thought that you might be holding someone at gun point and you’re going to have to be multi-tasking, the better. You’re going to have to be reading a changing situation, what the Supreme Court has recognized as a rapidly evolving set of circumstances, and you’re not going to be able to keep conscious focus on, “Oh, yeah, my finger is supposed to be up in register on the frame.” You have to have made that second nature.
There are going to be a whole lot of situations where it is going to be better for all of us if it’s resolved verbally, not ballistically. We have to remember that the gun is not the only choice that we have. It would be good if people worked force-on-force role-play enough and practiced their command sequence the way they practice drawing their gun. Practicing martial arts is fun, practicing drawing and shooting is fun; yelling at people for most of us is not fun. It is something that we have to have practiced and have to have nailed down.
I’ve found particularly doing it in a strong command voice probably keeps things from escalating. In my case, I’ve had a significant number of people at gunpoint and have never had to shoot a one of them. All have either submitted or fled right there. That is a whole lot easier than having to go through that number of shooting trials or excessive use of force trials.
eJournal: Likewise, I am sure that a good number of your graduates have also been spared post shooting trauma and legal aftermath by being able to control a budding threat through strong verbal commands. We’ve been so very fortunate to be able to learn these skills from you! I appreciate you teaching us threat management instead of just shooting.
___
Learn more about Massad Ayoob’s classes, expert witness services and more at http://massadayoobgroup.com/who/. In addition, he blogs regularly at http://backwoodshome.com/blogs/MassadAyoob/.
Click here to return to September 2015 Journal to read more.