Hungry for another claimed example of a deadly Stand-Your-Ground defensive encounter, the mainstream media has seized upon the gas-station shooting death of a black man by a rifle-armed woman, also black, this past Sunday in Houston.
Video of the encounter was captured by the gas station’s security cameras, both inside the enclosed portion of the station, where it seems the encounter began, and out by the pumps where the encounter turned deadly.
Much of the information available to date is from “news” sources, so the “facts” as described must be considered malleable. It appears, however, that the man made some unwanted sexual advances on the woman inside the gas station.
When the woman was standing beside her car near the pumps, the man–58-year-old Louis Daniel–who was killed can be seen circling around the rear of the car, in an aggressive predator-like fashion, then closing distance with her. He was holding what appears to be an umbrella in his right hand, and the news claims he was holding a knife in his left, although this is not discernible in the low qualify security footage. A knife was, however, recovered near his body.
The video then shows her standing by the right-rear fender of her car, the trunk open. Daniel is advancing toward her in a manner much like a fighting stance, shuffling forward with his feet a considerable distance apart, consistent with someone who wanted a firm balance in order to strike a powerful blow.
As Daniel continues to approach, the woman raises her left arm, shoulder high, pointing at him, consistent with her warning him to not come closer. He continues to close, now well within contact distance, and she removes a rifle (unidentified, but similar in size to, say, a Ruger 10-22). She points the rifle downward, and seems to be working the action, with Daniel standing directly beside her, apparently undeterred by the firearm.
Suddenly, Daniel lifts his left foot–this may have been when the reported first shot was fired toward the ground. When his foot rests once again on the ground he brings back his left hand (the one that may have held a knife) and strikes her across the face hard enough to send her–a robustly sized woman–staggering half the length of the car.
When she regains her balance she raises the rifle and fires at Daniel, killing him (this last part is presumed, as the video does not show the actual shooting).
Stand-Your-Ground, Lone Star Version
So, was this a Stand-Your-Ground self-defense case? In Texas Stand-Your-Ground is embodied in two statutes.
Section (e) provides:
A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
Section (c) provides:
A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
Gas Station Shooting Does Not Appear to Be SYG Self-Defense Case
While again urging caution given the nature of the “facts” we’re dealing with, it would seem to me that this case is not a Stand-Your-Ground.
As those of you who have been following along will by now have heard ad nauseam, Stand-Your-Ground simply relieves you of any generalized duty you might otherwise have had to retreat before using deadly force in self defense.
That generalized duty, however, only exists if there is a safe avenue of retreat available to you. You are never required to take advantage of an unsafe avenue of retreat, or one that increases your danger–like retreating across a busy freeway, for example.
If there is no safe avenue of retreat available, there is no duty to retreat, and if there is no duty to retreat then there is no need to apply Stand-Your-Ground to relieve of you of that non-existent duty to retreat.
Introduction to the AOJ Triad
So, was there a safe avenue of retreat, or was the threat so imminent that her defensive use of deadly force was imminent? A good way to analyze such situations is to consider the AOJ triad (discussed at length in Chapter 3 of “The Law of Self-Defense, 2nd Edition.”)
The AOJ triad is a conceptual model for evaluating whether a threat has achieved a degree of imminence warranting the defensive use of force. I first learned the AOJ triad while taking my Lethal Force Institute course from Massad Ayoob back in the mid-1990s. The letters of the acronym stand for Ability-Opportunity-Jeopardy.
Ability: Means to Cause Harm
Ability refers to whether your attacker has the means to hurt you. This involves some disparity of force to their advantage that can only be offset by you escalating the defensive force you use in response. So, if they possess a dangerous weapon, of if they are substantially larger, or if they are more numerous–those types of factors would create the kind of disparity of force needed to satisfy the ability element.
Opportunity: To Bring the Harm to Bear
Opportunity refers to whether your attacker can actually bring that means of harm against you. They may be armed with a machete, but if they are standing a block away they cannot (yet) use that machete against you. Were they armed with a gun, however, a block’s worth of distance provides very little comfort if they know what they are doing (or even if they are just lucky).
Jeopardy: Apparent Intent to Apply Ability and Opportunity to Cause Harm
Jeopardy refers to whether you attacker has conducted himself in such a way that a reasonable person would conclude they intended to use the opportunity to bring their ability to cause you harm to fruition. An armed guard standing quietly in a bank would not meet the jeopardy requirement, but a ski-masked man screaming for “all the money!” and waving a gun around certainly would.
Application of AOJ to the Houston Gas Station Shooting
So how does AOJ apply to the Houston gas-station shooting? Let’s take a look, a bit out of sequence.
First, it seems pretty clear that there exists a robust argument for jeopardy. The man was clearly the aggressor. He allegedly made unwanted sexual advances towards her in the gas station, then repeatedly verbally confronted her again, as seen in the video. He then followed her out to her car, where she was seeking to pump gas. Finally, his conduct became physically aggressive, and he closed distance with her despite her apparent protestations to stay back. Even when she displayed the firearm, he declined to cease his aggression and withdraw from the conflict he had initiated. It seems reasonable that such conduct by an aggressor would cause an innocent to fear harm.
Second, it also seems clear that he had the ability to cause her serious harm. He was armed with the potentially dangerous weapon of the lengthy umbrella, and allegedly also a knife. He was also strong enough to send her stumbling several feet with a single blow. This disparity of force would seem to justify his victim in escalating the degree of force needed to defend herself to the deadly-force level.
Third, he clearly had the opportunity to bring his dangerous force to bear during the physical encounter, and the moments leading up to it. At the moment Daniel struck the woman he was, of course, at arm’s length distance–there was no feasible way she could safety retreat should he choose to launch a deadly attack from that range. Even after he struck her and sent her stumbling back, he was still a mere six feet or so distant from her, and he made no apparent effort to increase that distance, so he still possessed the opportunity to continue his attack.
Knowledge of Tueller Drill Shows No Reasonably Safe Retreat Possible
Indeed, even during the earlier moments of the conflict by the gas pumps, he was never more than 21 feet distant from her (at least. As the Tueller Drill (covered in Chapter 5 of “The Law of Self Defense”) has plainly demonstrated for 30 years now, an attacker armed with an impact weapon can cross, from a standing start, a distance of 21 feet and strike a mortal blow in about 1.5 seconds–far less time than most people need to bring a firearm into play and get solid center-mass hits. Indeed, in the security video here shows, it was at least 5 seconds from the time the woman retrieved the rifle from her trunk to when the first shot was apparently fired (at the ground). So even during that earlier period when the man was confronting her from an ever decreasing distance, he was still much too close for her to have been able to secure the safety of the vehicle from her position at her rear fender before this aggressor could be upon her with a deadly attack.
So, it appears that the elements of the AOJ triad are met, and there existed an otherwise unavoidable threat of death or grave bodily harm against which deadly defensive force was warranted.
Further, there appears to be no time from when the man began confronting her while she was at the pumps that she would have had a safe avenue of retreat available to her. Without a safe avenue of retreat there is no duty to retreat, and if there is no duty to retreat, then Stand-Your-Ground has no place in lifting that non-existent duty.
So, no, this does not appear to be a Stand-Your-Ground case.
UPDATE/CLARIFICATION: There seems to be some misunderstanding that because I don’t believe this was a Stand-Your-Ground case, that I therefore do not believe this woman’s use of force was lawful self-defense. That is not the case. It certainly appears to be that this woman has a very strong self-defense claim. Most cases of lawful self-defense, however, do not involve Stand-Your-Ground–that doesn’t make the act of self-defense any less lawful, it merely means SYG is not a relevant issue in the analysis. That, I believe, is the case here.
Evidence of Consciousness of Guilt/Consciousness of Innocence
The whole scenario does, however, get very weird after the fatal shots are fired. Reports are that the woman apparently secured her rifle in the car, finished fueling her car, and took photographs of the dead or dying Daniel. She then simply got in her car and departed the scene, without making any effort to report the matter to authorities.
In the law there is a concept called “consciousness of guilt” evidence (covered in Chapter 9 of “The Law of Self Defense.”. This is typically evidence that suggests a defendant had a self-awareness of having done wrong, and had taken steps to avoid punishment for his misdeed. Often it involves tampering with evidence or inducing witnesses to falsify their testimony, as well as fleeing from the scene of a crime. Where such evidence exists, the Court will instruct the jury that they may consider these specific pieces of evidence as indicating a consciousness of guilt. Believe me, you do not ever want your jury given a consciousness of guilt instruction. Not only does it implicitly suggest that the Court thinks you’re guilty, it suggests that YOU think you’re guilty.
The woman’s conduct here, while thoroughly bizarre, does not quite seem to meet the threshold of consciousness of guilt evidence. The leaving of the scene, if done at, say, high speed, would qualify–but the fact that she finished gassing up and took a photo suggests she did not depart from fear of imminent arrival of the authorities.
Her conduct, however, certainly does not comport with the inverse legal concept called “consciousness of innocence”–that is, evidence that suggests a defendant believed his conduct had been lawful. For example, calling the authorities immediately after having shot someone in self-defense to report the incident. A guilty person tends not to do this.
Not every jurisdiction formally recognizes the concept of “consciousness of innocence,” arguing that every defendant already starts the trial with a presumption of innocence until disproven beyond a reasonable doubt.
Conduct Seemingly Inconsistent with Innocence is to Prosecutors as Blood in the Water is to Sharks
Regardless of its official status, however, I can assure you that every good prosecutor makes all the hay he can out of any conduct that is inconsistent with an apparent consciousness of innocence. Any and all acts you may have committed in the aftermath of a shooting that doesn’t appear to be as white as the driven snow–and even some that do–will be held before the jury as absolute proof of your guilt as a murderer.
In this case, the prosecutor would argue that a woman who has just had to kill an aggressive and dangerous sexual predator in the middle of a gas station simply does not act as this woman did if she were innocent. The innocent person rushes to call the police, even an ambulance for the victim. (Recall during the Zimmerman trial the State prosecutors asking witnesses if there was any evidence that Zimmerman had tried to provide medical assistance to Trayvon Martin, suggesting that an innocent defendant would have done so). The innocent person does not simply finish gassing up their car, take a picture of the dead body, and drive on home to watch Falling Skies that Sunday evening.
Such circumstantial evidence, however, is usually powerful only when layered upon direct evidence of wrong doing. In this case the underlying act appears to be consistent with lawful self-defense, and therefore the conduct after the shooting would appear inadequate to warrant a prosecution.
Take-Home Message: Keep Conduct Utterly Consistent with Consciousness of Innocence, At ALL Times
Of course, the Zimmerman prosecutors brought their case with far less evidence than here. The take home message is that if these Houston prosecutors do not bring this woman to trial based upon her post-shooting conduct, it is not because they can’t try to do so, it’s because they’ve chosen not to do so. The power and authority is in their hands, not hers.
This can have substantive implications with only small changes in the fact pattern. What if, for example, the person shot was a teenaged black “child” and the shooter was a 48-year-old lawyer from Boston? Might a Houston prosecutor with aspirations for higher office seek to leverage such an opportunity at the lawyer’s cost? They certainly might, and the choice would be entirely theirs.
For this reason it is always, always, always essential to conduct yourself in a manner entirely consistent with consciousness of innocence, before, during, and after a self-defense conflict. Doing so preserves your lawyer’s ability to conduct a compelling narrative of innocence for the police investigators, for the prosecutors, for the Court, and for the jury. And it’s that compelling narrative of innocence that is the only thing standing between you and a life time of jailhouse joy.
NOTICE: “Law of Self Defense” Seminars are now being scheduled for the fall.
Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense, 2nd Edition” now available at www.lawofselfdefense.com and also at Amazon.com as either a hardcopy or in Kindle version, and at Barnes & Noble as hardcopy or in Nook version.