Shot in the Back! Justified or Not?

Prosecutors have criminally charged police officers when the officer has shot someone in the back or when the officer shot someone falling down, stating that these shots were unjustified. There is a fine line between shots that are a lawful response to a deadly threat and shots that are fired after the deadly threat ceases. The only time a private citizen defender (or law enforcement officer for that matter) may use lawful deadly force is when another is threatening or using unlawful deadly force. When the threat has ended, the defender must stop using deadly force. Of course, the problem lies in determining exactly when the threat has ended. The fact that basic human nature often causes an attacker to reflexively turn away from the defender’s gun compounds the difficulty of making this determination.

Dynamic, deadly encounters can happen very quickly and a private citizen’s use of deadly force in lawful self defense can be over in moments. However, close legal scrutiny on the defender’s decision to start and stop shooting can result in the aftermath taking years to play out. 

Massad Ayoob cites an example of this challenge in the case of Florida v. Mary Hopkin in the mid-1980s. Mary Hopkin was a frequent victim of her burly common-law husband James Yarolem who often beat her and once had strangled her and left her for dead. Yarolem was out on bail and drunk when he returned to Hopkin’s home and tried to enter. Hopkin wouldn’t let him in and warned him that she had a gun; however, he broke down the door and advanced on her.

Hopkin fired three shots as fast as she could from a .22 LR revolver and stopped shooting when she perceived Yarolem to turn and run. He collapsed and died outside; however, Hopkin’s shots had hit him once in the chest, once in the side just behind lateral midline, and a fatal shot square in the back and into his heart. Janet Reno charged her with murder because she shot Yarolem in the back when he was “no longer a threat.” However, the jury found her not guilty after her attorney Mark Seiden, deconstructed the state’s case meticulously point by point with Massad Ayoob’s assistance.

Exactly how fast can someone turn around? Professor Bill Lewinski of the Force Science Institute at the University of Minnesota at Mankato found that a person could turn from facing forward to exposing their lateral mid-line in ¼ second for ¼ turn and ½ second for ½ turn--in other words fully presenting their back in 0.50 seconds. Further, there are cases where a shooter facing away can effectively point their pistol behind them (Lewinski, B., (2000)).

The Tadarius Hunt Incident:

In the images below, Tadarius Hunt, a suspect wanted for attempted murder points his pistol backward and fires at a police officer as he is running in the opposite direction. We see two different versions of the incident – one from police vehicle dashcam and one from the officer’s perspective. In the picture Back #1 below, Hunt has drawn a pistol and is firing it at the officer.

Back #1 Hunt has drawn a pistol and is firing it at the officer

In the picture Back #2 below, Hunt has turned to his right and is pointing the pistol at the officer as he prepares to fire once again.

Back #2: Tadarius Hunt Pointing A Pistol At Police Officer

In the picture Back #3 below, Hunt has turned further to his right and is firing the pistol at the officer once again.

Back #3: Hunt Firing at the Police Officer

Every time the Hunt pointed his pistol at the police officer, his back was exposed. It is likely that without the video evidence, it would have been easy for an emergency room physician or a prosecutor to conclude that the officer shot Hunt in the back as he was fleeing.

The Force Science Research Center (FSRC) has done research to understand the stop shooting problem when a police officer is shooting and assessing and has identified several factors explaining why a police officer who is both shooting and assessing cannot stop shooting immediately. This is the exact same problem a private citizen defender faces.

John Farnam did a study of just how fast someone could fire a revolver and found that it could be fired four times a second, while a semiauto could be fired five or possibly six times a second. My personal testing shows that someone with intermediate to advanced skills could fire a revolver five to six times a second and a semi as many as six to eight shots in a second. Of course, adrenaline, firearm design, and personal skill can affect this speed. Jerry Miculek holds the current record for shooting eight shots from a revolver on a single target in 0.94 seconds or one shot every 0.117 seconds (not counting his reaction time to the timer signal).

In the Tempe Study (2003), the FSRC determined that the typical reaction time to an anticipated stimulus is 0.25 seconds. From a stopping perspective, the study showed that when the average police officer stops shooting based solely on a perception of change in the outside world (and was anticipating this change), the fastest the officer is able to do this is 35/100ths of a second resulting in two shots being fired (p. 28). The ability to stop will occur not when the subject has changed their threatening behavior but after the police officer begins to detect a change in the threatening behavior. This distinction is important because the psychological processes of perception and detection often take many times longer than the physical responses involved.

The FSRC concluded that an officer who engages sequentially in all of the steps necessary to cycle through the observe, orient, decide act process can take a second to a second and a half or more to stop shooting. Measured in trigger pulls, which are occurring at a quarter of a second each, this is an extra four to six rounds after the threat stops. 

This is approximately the same amount of time that Green (2000) found for reactions to applying the brake and stopping in a real-world driving situation. This means that it is not possible to stop shooting at an attacker before he/she has an opportunity to spin and receive shots to the back (see also Lewinski, B., (2000)).

What are the implications for the armed citizen? If you are committed to firing a shot and have started to pull the trigger, the speed with which you can pull the trigger likely precludes stopping that action. If the threat turns as you pull the trigger, the trigger pull speed when combined with turning speed (particularly the speed of a young, athletic person) could easily result in justifiably firing one or more rounds that impact the threat in the back.

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Ph.D. Lewinski, B., (2000) Why Is The Suspect Shot In The Back? Finally, Hard Data on How Fast the Suspect Can Be In Eleven Different Shooting Scenarios

Ph.D. Lewinski, B., & Hudson, B. (2003a). Time to start shooting? Time to stop shooting? The Tempe study. The Police Marksman, 28(5), 26-29.

Green, M. (2000). “How long does it take to stop?” Methodological analysis of driver perception-brake times. Transportation Human Factors, 2(3), 195-216.

Fourteen Inches -- Is an NFA Shotgun Worth the Effort?

In today’s world of tacticool and combat hype, is purchasing an NFA shotgun worth the time and money when you can buy a short barreled, pistol-grip firearm that is “not a shotgun” such as the Remington Model 870 TAC-14? I think the answer to this question is yes.

VCS 965 NFA Short Barreled Shotgun

I recently purchased a Vang Comp Systems (VCS) 965 Shotgun. The VCS 965 is a highly modified Remington 870 pump shotgun with a 14-inch ventilated rib barrel which makes it an NFA-regulated short-barreled shotgun (see more information on the National Firearms Act below).* The key difference from a regulatory perspective is the stock on the 965. The stock on the 965 makes it an NFA shotgun whereas the pistol grip on the TAC-14 means it is not a shotgun even though it fires 12-gauge shotgun shells. Confusing right? But that is the nature of firearms regulation in the U.S.

 

Modified Remington TAC-14 Firearm

So why bother with an NFA shotgun if you can buy a TAC-14, a Mossberg Shockwave, or similar non-shotgun? The VCS 965 NFA shotgun is only 6-1/2 inches longer than the TAC-14; however, the stock makes a big difference in how it handles and shoots. Getting accurate hits with the 965 is no different than getting hits with a standard eighteen-inch shotgun. However, the 965 is much easier to maneuver in tight spaces such as a building or vehicle. I have some experience with the TAC-14 and similar firearms can attest that accurately shooting these firearms with a pistol grip requires a fair amount of upper body strength and proper technique. If you are an experienced shooter, getting your hits with these firearms is not impossible as Hickok45 demonstrated in a video of the TAC-14 (see link below).

So how does the shorter barrel perform? I did some testing to determine the difference in pattern between an 870 with an eighteen-inch barrel and the fourteen-inch 965 barrel. Both guns have the VCS port modifications and I used Federal Power-Shok 2-3/4" 8 Pellet 000 Buckshot ammunition for testing. I shot five shells from each gun at ten yards. The 870 with an eighteen-inch barrel patterned five inches and the 965 patterned 6-3/4 inches – a negligible 1-3/4-inch difference.

Is an NFA Shotgun Worth the Effort? I think so. The advantages that the shorter barrel and stock provide and the fact that the performance differences between the short barrels and a standard eighteen-inch is negligible makes it worth the effort to acquire an NFA SBS. All in all, I am pleased with the VCS 965’s performance and look forward to putting it through its paces during a shotgun match.

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* The National Firearms Act regulates the registration, possession, and transportation of a variety of firearms and devices. Further, each state’s laws dictate what can or cannot be possessed, with some counties within states having different regulations as well. Please contact your local ATF Field Office with any NFA questions or concerns.

Hickok45 Video: https://www.youtube.com/watch?v=SbV0T_hWyNA 

Additional Note: I have some anecdotal experience with 14-inch shotguns. In the early 1980’s, I was fortunate enough to have access to the State Department’s Diplomatic Security Service (DSS) firearms research at Quantico, Virginia. At that time, the DSS was trying to identify the shortest functional length of a shotgun barrel when firing the standard magnum 12-pellet 00 buckshot load. The DSS goal was to identify the buckshot load’s peak dwell versus velocity and cut the barrels to that length. Said another way, the DSS wanted to have the shortest possible barrel without losing any velocity. (Peak dwell defined as the instant the powder completes burning as the shot column is moving down the bore.)

DSS researchers determined that thirteen inches was the optimum dwell/velocity point and cut Remington 870 barrels to that length for testing. A problem immediately surfaced. When the peak dwell/velocity point was at the barrel muzzle, the barrels were splitting. It turned out that the muzzle was also the barrel’s weakest point on the shotguns of that era. However, barrels cut to fourteen inches worked just fine and did not split. I believe that the common fourteen inch standard we see today likely resulted from the DSS research. As an aside, the Vang Comp experts said that the optimum dwell/velocity point with modern powders is about eight inches.

Stand and Deliver is Still Not a Good Idea

Those who are familiar with the modern technique understand the concept of Stand and Deliver. This is the tactic of the good guy, upon seeing a lethal threat, immediately and rapidly drawing his pistol and placing effective fire on the bad guy—before the bad guy can react. Action versus reaction—we’ve all heard it, but is it true? I think there is a fundamental flaw with this the stand and deliver technique--in reality; your action will rarely beat their reaction if the bad guy is paying attention and committed.

One of the drills we do in force on force training is for each student, one with pistol drawn, the other drawing their pistol to both attempt to shoot each other with Airsoft while standing in place (important caveat). In the force on force drill each student invariably shoots the other with a little plastic pellet; however this is not what happens in real life.

We conducted an experiment with 100 different trials. We had four participants: one advanced shooter, one intermediate, one somewhat trained, and one basically untrained. The advanced shooter had studied the modern technique for 30+ years, attended close range gun-fighting and force on force courses. The intermediate shooter had attended a couple of modern technique classes and was an IDPA sharpshooter. The somewhat trained shooter had attended no formal instruction and was an IDPA Marksman while the basically untrained shooter had no formal instruction and only limited experience drawing and firing a pistol from the holster.

The experiment has two shooters standing side-by-side, one drawing and shooting a target 3 meters down range. The shooter drawing from the holster (good guy) starts with his hand on the pistol grip, draws his pistol when he chooses, and fires one shot at the silhouette. The other shooter (bad guy) starts with his pistol aimed at the head of a silhouette target (also 3 meters away); reacting and firing when he sees (using peripheral vision) the good guy draw his pistol. In 98 out of 100 trials, the bad guy with his pistol aimed at the head of his target fired and hit first. Only once did both shooters fire simultaneously and only one time did the good guy fire first.

We used a video camera at 60 frames per second to time the movements. We measured the draw time starting with the first frame indicating upward movement of the pistol from the good guy’s holster and ending with the first frame indicating that the shooter has fired. We measure the bad guy’s shot as the first frame indicating the bad guy is firing his pistol (e.g. bullet has departed the barrel, pistol is unlocking, etc.).

Some numbers: The average draw time for all shooters starting with their hand on the pistol was .372 seconds. The fastest draw time recorded was .300 seconds while the slowest draw time recorded was .479 seconds--all draws in less than half a second. The advanced shooter recorded the fastest draw time while the basically untrained shooter recorded the slowest. The average reaction time for all bad guy shots was .279 seconds; the fastest reaction time we recorded was .133 seconds, the slowest reaction time was .383 seconds. The intermediate shooter recorded the fastest reaction time while the basically untrained shooter had the slowest.

Observers of our experiment often thought both shooters fired simultaneously; however, that was not the case. The shortest split time between the bad guy firing and the good guy firing was .017 seconds or 17/100s of a second. However, even in this short time-frame the good guy's finger was not on the trigger and his pistol was not yet on the target when the bad guy fired. So unlike Airsoft where both get hit with a little plastic pellet, in the stand and deliver mode the good guy gets shot in the head and never fires a shot in 98 out of 100 times. The bottom line to these numbers--if you attempt to stand and out draw your opponent when the bad guy is paying attention, then a flash at his pistol muzzle is likely the last thing you will ever see.

The solution is to move, draw, and shoot—-in that order. When I first began practicing the skills I learned in short range gun-fighting, I genuinely believed that I was moving and then drawing and firing my pistol. Video proved I was not and I discovered it takes some effort to overcome this tendency. Based upon our experiment, the time I was taking to begin my draw before I started moving would have likely resulted in me taking a bullet.

I believe this is a common training scar associated with those who have only received traditional square range training or (perhaps not surprisingly) those regularly shooting International Defensive Pistol Association (IDPA) matches. I believe IDPA courses of fire or stages that encourage stopping in the open or moving over a short distance while engaging threat targets encourage this bad habit; the way these stages are typically designed, if you move first and then draw you typically must slow down or you do not have time to fire the shots. Standing still, slowing down, and/or walking slowly in the open is a really bad idea if you are receiving incoming bad guy rounds.

One final word. Do not try to replicate this experiment. Often participants do not have the trigger finger discipline and skill to rapidly and safely draw their pistol. Newer shooters frequently place their finger on the trigger too early in the draw stroke and end up with unintended discharges that could cause property damage, serious injury, or death.

This is an update of an earlier article published in the 12 January 2016 edition of the IDPA Tactical Brief (click here)  and on my blog. Multibriefs produces articles for a variety of industry newsletters including the IDPA Tactical Brief (click here for additional articles). 

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Social Media and Use of Force Revisited

See Picture Note Below

If you are ever involved in a use-of-force incident and are charged criminally, one thing that you can be certain of is that the prosecutor will ferret out every controversial thing that you have ever posted on-line. They will use that information to paint you as a blood-thirsty, Rambo-wanna be who was itching to kill someone for their own visceral pleasure. What you post on social media, what you wear, the public behaviors you exhibit, and potentially what others post can be used against you in court. 

Posts on social networking sites such as Facebook, Reddit, “X”, Instagram, blogs, and other social media are regularly popping up as evidence in courtrooms across the country. Social media evidence has been a critical element in several use of force court cases. 

Prosecutors and defense attorneys have learned that searching people’s social networking and combing though some of what they have shared with the rest of the world is often a veritable gold mine of information. In several trials, a defendant’s credibility was completely lost in a matter of seconds when the jury was presented with something the defendant had previously written in text messages or posted on social media. 

As an example, in an incident during a protest in Austin, Texas a ride share driver named Daniel Perry shot and killed Garrett Foster (a protestor). Perry told Austin PD lead detective, David Fugitt that Foster approached his vehicle and pointed an AK-47 at him. Perry responded by shooting Foster five times. Based on Perrys recounting of the incident and other witness statements, Detective Fugitt concluded that the shooting was likely justified self-defense and declined arrest Perry at the scene. Detective Fugitt’s further investigation developed exculpatory evidence including animation from Daniel's Perry's driving the night of the incident coordinated with his cell phone records that (in the detective’s opinion) refuted the deadly conduct charge. (1)

However, newly-elected (at that time) Travis County District Attorney José Garza quickly brought the incident before a grand jury. I suspect Garza’s decision to prosecute Perry in large part was because of Perry’s social media postings and private messages. After an eight-day trial, the jury returned a guilty verdict for the murder charge and found Perry not guilty of aggravated assault with a deadly weapon.

The prosecution submitted some of Perry's Facebook postings in evidence during the trial. However, the prosecution requested and I believe the judge likely approved the release of a document containing the transcript of Perry’s private messages and other social media after Perry was convicted to inflame public opinion concerning Perry prior to his sentencing. Travis County prosecutors released seventy-six pages of Daniel Perry’s phone messages, media files, Facebook messages, and other information concerning his internet searches, texting conversations, etc. dating back to 2019. (2)

In Perry’s social media and messages he speculated numerous times about shooting protestors. During his trial, I believe prosecutors successfully used Perry’s social media and private messages to establish mens rea or a “guilty mind” concerning Perry’s actions. Mens rea refers to what the defendant was thinking and what his intent was at the time he committed the crime.

Here is some food for thought. Many self-defense and firearms associated Facebook groups and the discussions in those groups can encourage participants to believe they are among friends and as a result post potentially imprudent comments. Below are just a few examples of actual quotes that I have seen in Facebook groups discussing various incidents.

     -- Should have killed both of those cockroaches.

     -- Needs a bullet between the eyes!

     -- Needs to be shot.

     -- Put a cap in him.

I recently saw a somewhat well-known firearm instructor’s Facebook post stating: “Why can’t we all just see a MF’er and shoot a MF’er?” This post received several hundred likes from people in the firearms community.

Your “likes” on social media can also be viewed as speech. In Bland v. Roberts, the 4th Circuit stated in part: “On the most basic level, clicking on the “like” button literally causes to be published the statement that the user “likes” something, which is itself a substantive statement. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual keystrokes is of no constitutional significance.” (3)

So let's say you’ve been freely expressing your opinion concerning shootings and other use of force incidents on Facebook and other social media. You also like expressive t-shirts and you still find the Marvel Comics fictional character “Punisher” fascinating. Now you are involved in a self-defense shooting and perhaps it occurred in one of the more “progressive” jurisdictions like--Travis County, Texas.

See Picture Note Below

Let’s go a step further and say that the miscreants who attacked you are of a different race, that the surveillance cameras only recorded one view of the incident, and that view does not completely reflect what you were confronting face to face. The progressive population demands that the progressive prosecutor present the incident to a grand jury and you are now charged with a serious crime. 

Remember, self-defense is an affirmative defense and can be a two-edged sword. To present an affirmative defense, you must admit that you did the act; however, you affirm that you were legally justified in doing so. The prosecution obviously disagrees and will be attempting to demonstrate that your action was not legally justifiable and that you in fact committed a crime. I believe based upon my research of the incident that Daniel Perry acted in self-defense. However, the prosecution successfully used Perry’s own words to support his prosecution.

Now, think about this real hard the next time you are typing something online. Would you want a jury hearing that you had previously said any of the statements above? What if there was a racial difference between you and your attacker and your attacker just happened to be of the same race as the individuals whom you called “cockroaches” and said should have been killed in a Facebook post? How do you think the jury is going to view this and your t-shirt picture that says a bullet is faster than dialing 911 or the Punisher decals on your vehicle? 

“Ladies and gentlemen of the jury, I present "exhibit A" taken from a post the defendant made on social media in an unknown county in Texas on or about June 2020. According to the defendant: “all (insert race) are cockroaches and should be killed.” 

So after the victim approached the defendant in the gas station and said “I am taking your car” but then backed away having had second thoughts about what he was doing. The defendant who, by his own words has been anxious to kill some (insert race) cockroaches, then emptied a clip of DEADLY HOLLOW POINT KILLER BULLETS from his AUTOMATIC ASSAULT PISTOL (liberal prosecutors always use incorrect nomenclature like clip and assault pistol). The ‘victim’ in this brutal, premeditated crime has five children and was merely trying to provide for them the best that he knew how. Was he also a “(insert race) cockroach” that should have been killed?” 

Given some of the thug behavior you see today, it may be your opinion that the thug in a video did indeed need to be shot. Regardless, is this really a statement you would like a jury to hear and for your lawyer to try and defend or explain? 

Before making a post on a social media site, think about how people might interpret your words. Even if you feel they aren’t negative or damaging, a viewer might disagree. Never post anything online that you wouldn’t want to own up to publicly. 

Do not to expect your social media posts and text messages to stay private. Plan accordingly when using these accounts to communicate with others. Even so-called private posts made or exchanged on social media can come back to haunt you in court. Consider them a journal that anyone could pick up off your desk or bring to court as proof of your private thoughts and activities. Since even innocuous actions can appear to be inconsistent with certain claims, expect this information to be used in court when it might give the other side an advantage.

Remember that social media posts and text messages can also be a type of evidence that you have a duty to preserve. If you are involved in a self-defense incident and then try to delete these accounts, this could cast doubt on your credibility and imply that you are trying to hide something. 

Since social media is such an ingrained part of modern life, you can expect that it will become an even bigger feature in court cases in years to come. It is a very good practice to keep your social media posts benign and only include things you’d want a potential jury to see. How you dress and present yourself can also have unanticipated consequences. Posing for a picture in from of your cool vehicle that is covered in Punisher decals while wearing a t-shirt that says “a 9mm is faster than 911” may have implications you would rather not have your defense lawyer try to defend at your trial. “Smile, wait for flash” engraved on your pistol muzzle might be clever but . . . you get my point.

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(1). David Fugitt Affidavit: https://archive.org/details/fuggit-affidavit/mode/2up 

(2). Perry Documents: https://www.kxan.com/wpcontent/uploads/sites /40/2023/04/Daniel-Perry-Evidence.pdf

(3). Bland v. Roberts, United States Court of Appeals For The Fourth Circuit, No. 12-1671

Picture Note: The pictures in this article are used solely to illustrate the ideas being discussed. No picture in this article is in any way associated with Daniel Perry or any incident, trial, or other activity involving Daniel Perry.