»AS I PRESSED THE TRIGGER of my snub-nosed revolver, the front sight was in perfect focus. In my peripheral vision, I saw the base of a cartridge rotate from the 2 o’clock position toward 12. When it reached 12 o’clock, the hammer would fall. If my aim was true, I would send a lead +P 158-grain semi-wadcutter just forward of the assailant’s right bicep into his thoracic cavity toward his heart. A thought flashed in my head: This idiot is going to make me shoot him over a shoplifting charge.
Parking Lot Melee
Two minutes earlier, there was no indication I would be in a violent encounter that day. I was headed into the local mall to get a pair of eyeglasses fixed. I was in a state of relaxed alertness, aware of what was around me but of no specific threat. This is the condition of alertness Col. Jeff Cooper referred to as “Condition Yellow.”
Now, it seems you can’t pick up a gun magazine without reading an article that mentions the Color Codes, so why am I beating a dead horse? Well, the traditional color codes, which were developed for wartime, can get you in trouble in the civilian world. There is a modification, though, that will serve you well on the streets and in the home.
I cleared a row of cars and headed to the entrance. I saw a man fighting to get out the door as two men tried to stop him from leaving. All three were in civilian clothes. I mentally jumped into Condition Orange.
Most states in the U.S. consider pulling a gun in public, even if it’s never pointed at someone, to be disorderly conduct.
Condition Orange is where something has appeared on your radar that might be a threat. It’s the proverbial “something went bump in the night.” It might be a burglar or it might be that the family dog knocked something over.
At this stage, although I was legally carrying a pistol, I would not have been justified in drawing it. I saw no weapons and no one was threatening me. To pull a gun at this stage could have sent me to jail. Most states in the U.S. consider pulling a gun in public, even if it’s never pointed at someone, to be disorderly conduct — recklessly putting someone in alarm or causing public inconvenience. The person put in alarm doesn’t have to be the person you are interacting with. It could be another bystander who doesn’t like seeing your gun in public.
I have seen hundreds of suspects resist arrest and my training and experience told me that’s what this was.
“Are you Loss Prevention?” I asked the two guys who were trying to restrain the third.
They confirmed they were Loss Prevention Officers (LPOs) and they were trying to arrest this guy for shoplifting. I jumped to Condition Red.
Condition Red means a threat has been confirmed. This is where most gun-shop commandos would tell you to pull your gun and start shooting. That advice can get you put in prison if you follow it. This wasn’t even close to a deadly force situation — yet.
Whether an assailant is unarmed or armed with a firearm or a knife, three important conditions — Ability, Opportunity and Jeopardy — must be present before you’re allowed to respond with deadly force.
Decision To Draw
I could either assist the LPOs or walk away. I was not a sworn police officer, so I had no legal obligation to assist. If you are a civilian, there is never a legal obligation for you to intervene. You always have the option of walking away. Sometimes, walking away is the smarter tactical decision.
Being an ex-cop, though, I couldn’t just stand there and watch, so I jumped in to try to help. Despite having three people trying to restrain him, the suspect broke free. He backed across the parking lot, completely ignoring our commands to stop as we followed at a safe distance.
The situation had escalated. This was no longer just detaining a suspect but detaining a combative suspect. I drew my gun, but kept it by the side of my leg. In the movies, the good guy would be pointing his gun at the bad guy, maybe even firing a warning shot. Although I was attempting an arrest, the situation had not escalated to the point I, as a civilian, could point my gun at the suspect.
The Choices of Evils Doctrine is supported in all 50 states. Quite simply, it says you are allowed to break the law in order to prevent a worse harm.
In the real world, pointing a gun at another person without sufficient justification is considered assault. In some states, it’s a misdemeanor. In others, it’s a felony. Did I ask myself if I would be legal in even pulling my gun? You better believe I did.
The inner debate didn’t last long. Because I was familiar with state laws, I was well aware of the “Choices of Evils Doctrine.” The Choices of Evils Doctrine is supported in all 50 states. In Oregon, it is codified in the law. Quite simply, it says you are allowed to break the law in order to prevent a worse harm. If you are at a lake and see a person drowning, you are allowed to take a boat without permission from the owner (theft) in order to save the life of the person who is drowning. In this case, having a gun in hand while attempting to arrest a combative suspect outweighed the potential disorderly conduct charge.
Deadly Force
When the suspect reached the far end of the parking lot, the situation escalated to what my police survival instructor called an “Oh, sh#!” moment. The two LPOs tried to box him in. With his retreat cut off, the suspect pulled a knife from his jacket. The blade was about the same length as his forearm. He held it up in a fighting stance, facing the two LPOs. His eyes were wide and his lips were pulled back in a snarl. He had made the decision to fight, using deadly force, to avoid arrest.
I quickly brought the pistol up into an isosceles stance.
“Drop the knife! Drop the knife!” I yelled.
Deadly force is only legally justified when it is employed to stop an immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent. There are three conditions that must all be present to legally use deadly force.
The first of these is Ability. Does the suspect have the power to kill or deliver grave injury? The large knife definitely gave the suspect the ability to kill or cripple us.
The second condition is Opportunity. Are the circumstances such that the other person would be able to use his ability against you? If the suspect was on the other side of a chain-link fence, he would not have the opportunity to use the knife. In this case, he was about 6 feet from the LPOs and about 30 feet from me. I decided he had the opportunity.
As my finger pressed the trigger, the suspect glanced at me. The impact of seeing a gun pointed at him was dramatic and immediate.
The third is Jeopardy. Does the other person’s actions or words provide you with a reasonably perceived belief that he intends to kill you or cripple you? He was in a fighting stance, so, yes, the two LPOs were in jeopardy.
In his book, Combat Shooting with Massad Ayoob, Massad Ayoob adds Condition Black to the Cooper Color Codes. Condition Black is making the conscious decision to use deadly force.
Although all three conditions of Ability, Opportunity and Jeopardy were there and I could legally pull the trigger, I did not immediately do so. I gave one more command to drop the knife. He didn’t. I went to Condition Black.
As my finger pressed the trigger, the suspect glanced at me. The impact of seeing a gun pointed at him was dramatic and immediate. He blew out the air in his lungs, his chin dropped, his shoulders slumped and he lowered his arms. It literally looked like he was deflated. I took my finger off the trigger a heartbeat before the hammer fell.
The suspect backed away and jumped over a retaining wall into a bunch of thick bushes with no exit. Deputies arrived and surrounded the area. A sheriff’s canine pulled the suspect from his hiding place. (What part of, “Come out or I’ll send the dog” don’t these people ever seem to understand?)
Looking Back
After the suspect was in the back of a patrol car, we were interviewed by the police. Later, I was called before a Grand Jury to see if there was probable cause to charge the suspect. I was thoroughly questioned about what I saw and my actions that day. One grand juror asked a lot of questions about why I drew my pistol and why I made the decision to not shoot. There is not a doubt in my mind if I had been wrong, I would have faced criminal charges and a civil suit.
Violent encounters are dynamic situations. The span of time where I could legally use deadly force lasted about five seconds. If I had not stopped my trigger pull, I would give my odds of avoiding jail and a civil suit at 50/50. More importantly, it would have been morally wrong to shoot the suspect. I had to make the decisions to use and then not use a gun in the span of time it takes to draw a breath.
People who are not aware of when they can legally use a firearm will likely either hesitate to use it when they should or rush and use it when they shouldn’t. Either decision has the potential of destroying a good person’s life. Knowledge of when it is legal to use a firearm is just as important as sight picture, sight alignment and trigger control.
At this time in history, there is more knowledge readily available to the layman on the legal aspects of firearms use than at any other time. If you have made the decision to carry a firearm, you have a moral responsibility to become educated on when you can and can’t use it.
