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.

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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 lawyers 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.

A Bang, But No Boom. The Well-Designed SIG P320

During one of my recent practice sessions, a round had a different feel when it fired. Additionally, as it fired I saw a black item exiting the pistol which I later determined to be the extractor departing stage right.

In the SIG P320 armorer’s course, the instructor mentioned that SIG engineers designed the P320’s extractor to blow out and relieve excessive gas pressure when a case ruptured and vented the pressure into the pistol, thus preventing further damage. That is exactly what happened. A 9mm brass case ruptured, allowing the gas to enter the pistol; however, the only damage my pistol suffered was the loss of the extractor (I could not find it).

Why did the case rupture? Typically, there are several causes of case ruptures including too much gunpowder, a weakened case (from too many reloads or poor manufacture), or a chamber that does not fully support the case. I was shooting my reloaded training ammunition which opens the possibility that I had too much gunpowder in the round. I do not believe that is what happened, however.

I am very familiar with the signs of overpressure in ammunition. The primer from this round exhibited no signs of excessive pressure. The case in question was a brass case from the Tula Ammo cartridge company which had only been reloaded one time. Since the primer exhibited no signs of excessive pressure, I can only conclude that the case itself was weak.  

In semi-automatic pistols, the case usually ruptures on the underside where it does not have complete chamber support because of the feed ramp cutout. This is where the case ruptured in this instance. 

 

Excessive pressure flattens the primer and can cause the firing pin to pierce the primer. With extreme overpressure, the pressure blows the primer out and destroys the brass case. Case ruptures often result in magazine damage with the magazine blown out of the gun and may also damage or destroy the frame of polymer pistols which means the pistol must be replaced. In the example shown below,the case completely ruptured and vented all of the pressure into the pistol. The pistol was a Springfield XD and the overpressure damaged the magazine, damaged the top round in the magazine, and completely destroyed the pistol; however, it did not injure the shooter.   

In my incident, I believe the SIG design turned what might have been an expensive event into a minor annoyance.

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Tap Rack? Not Always a Good Idea

Many instructors teach that the proper response to a click instead of a bang when firing your pistol is to tap the magazine and rack the slide—tap-rack—because this will often clear the malfunction. I teach this to my students as well because this maneuver does correct several malfunctions including magazines that are not properly seated, some failures to feed, and perhaps others and is generally an effective technique. But automatically executing a tap-rack maneuver is not always good idea depending upon the circumstances.

When a cartridge’s propellant does not fully ignite or when there is an insufficient powder charge, it may still generate enough pressure to cause the bullet to enter the barrel and lodge in the pistol's bore. Commonly known as a squib, if the cartridge's failure causes a bullet to be lodged in the barrel, subsequently loading and firing another round with the bore obstructed can result in serious damage to your firearm and potentially serious injury to you or a bystander.

In a recent match, a competitor had a failure to fire. Before the safety officer could stop the shooter, another competitor on the squad shouted “Tap – Rack!” The competitor did exactly that—he chambered and fired another round. Suddenly his pistol was out of action. The competitor had a squib and a bullet was lodged in the barrel. The round he chambered and fired behind the lodged bullet destroyed the barrel. In the picture below, arrows indicate a bulge in the barrel and an area where the chamber fractured and feed ramp was damaged. My quick examination showed that the slide and frame appeared to be undamaged—a testament to the Canik METE SFx’s strength. Regardless, I suggested that the competitor contact the manufacturer and have the pistol components examined to ensure that they were still within specifications and safe to use.

 

In the past couple of years, I have personally seen or have direct knowledge of several instances of factory rounds with insufficient powder charges. SIG SAUER, Hornady, Browning, Herter’s and Winchester have all recalled 9mm ammunition that may not have had proper powder charges. In 2021, Winchester recalled sixty lots which I would guess is a lot of bullets—some of it may still be around.

In competition or training when you are not working on malfunction clearance, it is important to pause and check the firearm’s status if there is even a remote possibility of a squib. This is particularly important in a match since firing in an adjacent bay can mask the sound of a squib. Since squib loads generally fail to expel the bullet from the barrel, you must use a metal rod or wooden dowel and some impact (e.g. a hammer or hard surface) to drive the bullet out before the firearm can be placed back into action. Matches and training are not life and death situations, if a competitor or student has a malfunction that could produce a squib, we are better off stopping them and ensuring that their firearm is safe to continue and then to re-shoot the stage or continue training before we permit something that may result in an injury to a shooter or someone nearby.

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The “New” Bakersfield Police Department Qualification -- An Update

In an earlier post, I used the term “old” to describe the Bakersfield Police Department (BPD) qualification that I was discussing because I had seen several internet sources describing what they said was the “new” BPD qualification. At the time, I did not believe that the discussions concerning the new qualification were accurate since from my research, the California Commission on Peace Officer Standards and Training (POST) requires a minimum of thirty-six rounds to be fired at five, seven, and fifteen yards with the handgun (LD 35 of the PC 832 Arrest and Firearms Training Specifications).

I mentioned in my article that I could find no official document concerning the current BPD qualification course of fire and asked for official references that provided this information. In the article, I also mentioned Bob Jewell’s well-researched article in the July 2024 edition of USCCA’s Concealed Carry Magazine which provided additional information and some pictures of Mike Waidelich, the Bakersfield Officer that created the “old” qualification.*

Long story short, Bob contacted me and we discussed the current status of the BPD qualification. The current BPD qualification is as follows:

• Stage 1: Two rounds at 10 feet in 2 seconds

• Stage 2: Two rounds at 20 feet in 3 seconds

• Stage 3: Two rounds, combat reload and two rounds at 30 feet in 7 seconds

• Stage 4: Two rounds at 60 feet in 4 seconds

Per Bob, the BPD rangemaster stated that the department is now using the more readily available IPSC/USPSA target rather than the older Waidelich-designed target. There are no longer any penalties for time over the limit as in Waidelich’s original qualification because the BPD now uses a turning target system. Officers must score 80 or better to pass using the following scoring:

• A-Zone: 10 points

• C-Zone: 9 points

• D-Zone: 6 points

How does this qualification fit within the California POST requirement mentioned above? Per my conversation with Bob Jewell, the BPD fires their qualification quarterly with BPD Officers firing each ten round qualification three times (30 rounds). Their qualification score is the average of the three runs. The April 2024 update to California POST LD 35 of the PC 832 Arrest and Firearms Training specification requires peace officers to fire a minimum of 30 rounds of service ammunition using a presenter approved service handgun, with acceptable accuracy standards and under time restrictions the firearms instructor establishes. In other words, the new BPD qualification does meet California POST April 2024 updated requirements.

Bob mentioned that in mid 2024, the BPD began awarding a coin to any officer who shot a perfect score on the qualification three times in a row. Bob indicated that as of December 2024, the BPD had only awarded coins to two officers. The BPD gave Bob the opportunity to shoot the “new” qualification and he successfully did so with three perfect runs on October 13, 2024—thus earning him a coin. Way to go Bob!

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* https://www.firearmtrainerpodcast.com/wp-content/uploads/2024/08/USCCA-July-2024-Waidelich.pdf