This past Sunday, September 1, saw the release of a remarkable bit of security footage from a Marionville, MO liquor store.
In it, store clerk (and military veteran) Jon Alexander is behind the counter when he is approached by a would-be robber — a robber who came very close to winning the Darwin Award.
The Defensive Use of Force, as Captured on Video
The robber had initially set off Alexander’s “alarm” when he had to be told to take his cigarette out of the “no smoking” establishment. The security footage later shows the robber step up to the counter with his right-hand held close to and just behind his hip. He seems to hesitate a moment in bringing the gun up, then raises it towards Alexander. Alexander would later testify that the man demanded, “You need to give me all your money.”
Veteran Jon Alexander confronts would-be robber with licensed handgun
The muzzle may or may not have been raised sufficiently to cover Alexander’s body exposed above the counter, the video angle makes this difficult to determine, but in any case, a round fired at that angle into the counter would almost certainly have ricocheted up to strike Alexander.
Alexander extends his left hand and places it above the robber’s gun, in a position to depress it downwards. The robber momentarily lowers the gun back to his side, but maintains his aggressive, forward-leaning stance in Alexander’s face.
Veteran Jon Alexander confronts would-be robber with licensed handgun
The tables turn decisively as Alexander simultaneously reaches behind his right hip and draws his own 9mm pistol from what appears to be a Blackhawk Serpa holster (a common US military issue holster, and an unsurprising choice for a veteran). Alexander directs his muzzle roughly at the robber’s larynx from a distance of only inches, while maintaining his left hand in a position to deflect an attempt by the robber to raise his own handgun. Alexander says he followed this action by informing the robber that “you need to get out of here before I blow your head off.”
Veteran Jon Alexander confronts would-be robber with licensed handgun
The robber decides he’s had enough and leaves the store, covered by Alexander’s muzzle as he departs.
Veteran Jon Alexander confronts would-be robber with licensed handgun
Like Most Defensive Uses of Guns, Not a Shot Was Fired
It’s worth noting that this is how the vast majority of defensive uses of firearms end—without a shot being fired, the defensive display of the firearm being sufficient to defuse the situation without injury to either party.
Would Alexander Have Been Justified in Shooting?
In this particular case, however, it’s worth asking, as an analytical exercise, whether Alexander would have been lawfully justified in using deadly force against the robber. Or, to put it another way, does there exist any legal basis on which one could argue that Alexander would not have been justified in using deadly force in self-defense?
The AOJ Triad
First, was Alexander faced with an imminent threat of death or grave bodily harm? Useful in evaluating this question is the AOJ triad, which stands for Ability, Opportunity, and Jeopardy. The AOJ triad serves as a useful conceptual framework to determine and to communicate the existence of a imminent threat of death or grave bodily harm.
Ability: First, did the aggressor possess the physical ability to cause death or grave bodily harm. Although this can be a judgment call, where the aggressor is using a deadly weapon in a dangerous fashion, ability is invariably established.
Opportunity: Second, did the aggressor possess the opportunity to bring that ability to bear? Most often “opportunity” is an issue where the aggressor possesses only an impact weapon and is at a distance where there is a question whether there did in fact exist an opportunity to bring that force to bear. In the case of a firearm, as in the instant case, “opportunity” is almost always met because of the power of such weapons.
Jeopardy: Third, did the aggressor conduct himself in such a manner that a reasonable and prudent person would have believed he was about to use that “ability” and “opportunity” to imminently bring that force to bear against the defender. Clearly in this case, where the robber raised the gun towards Alexander, “jeopardy” was established.
Objective Perception of Imminent Danger Established
So, a reasonable application of the AOJ triad to this video strongly supports a conclusion that a reasonable and prudent person would have perceived an imminent threat of death or grave bodily harm.
But What About the Subjective Perception of Imminent Danger?
Interestingly, however, Alexander himself undercuts the justification for actually shooting the robber by his own words. Asked why he did not shoot the robber, Alexander says he held back from firing because the thief’s weapon was never pointed directly at him. “If I had seen the actual barrel of the gun,” he reportedly said, “I would have pulled the trigger. My life wasn’t threatened.”
In order for the use of deadly force in self-defense to be justified, it is necessary that the defender possess both a subjective and an objective perception of an imminent danger of death or grave bodily harm. Alexander’s statement that “my life wasn’t threatened” could be used by an aggressive prosecutor to argue that he lacked the necessary subjective fear of imminent death or great bodily harm, and therefore would not have been justified in shooting the robber. (Interestingly, in my home state of Massachusetts the mere display of a firearm constitutes the “use” of deadly force, so that if Alexander would not have been justified in shooting the robber he also would not have been justified in displaying (much less pointing) the firearm at the robber. A crazy place, I know.)
It’s the Perception of Imminent, Not Fully Realized, Threat That Counts
Of course, the law of self-defense doesn’t require that you wait until the aggressor’s muzzle is fully on you before you can act in self-defense—it’s whether the aggressor’s muzzle is imminently about to be on you that is the determining factor. In the case of a handgun, where the barrel can be redirected with a flick of the wrist, almost any direction of the muzzle will be adequate if it is clear that the aggressor’s intent is to imminent cause harm to you or another innocent.
Alexander’s comment reflects a coolness of head that might be understandable in a four-tour Iraq veteran, ex-prison guard, and private detective, but is likely exceedingly rare among the general populace. I am far from certain that I would have been patient enough to allow things to come to quite so fine a line.
One fortunate robber, indeed.
–Andrew, @LawSelfDefense
Andrew F. Branca is an MA lawyer in his third decade of practice, an attorney member of the Armed Citizen Legal Defense Network, and a Guest Instructor on the Law of Self Defense at the Sig Sauer Academy. He is the author of the seminal book “The Law of Self Defense, 2nd Edition”.
Andrew conducts Law of Self Defense Seminars all around the country, and he has also launched a series of LOSD State-Specific Supplements that dive deep into every relevant statute, jury instruction, and court case that defines the law of self-defense in a particular state.
You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.
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Comments
Baa-Daa-BING..! Like Dat.
Amazing how the “Power” one feels when one has a gun instantly vanishes when one is confronted right back with an equalizer. He’s lucky the man is a trained veteran with some restraint. He could have easily pulled the trigger, and then blamed PTSD for response.
Tprobably what would have happened had he provoked the cashier too much. In circumstances like that, no one really knows how they will respond until they are in such a situation. I’m glad of the outcome, but a bit disappointed we’ll have to pay court costs for the dirtbag who attempted the armed robbery.
Why, oh why, would he have to blame shooting the guy stone-cold dead on anything? Most people had better darn well shoot to defend as most are not skilled military trained to ‘read’ the aggressor’s skill or lack of.
He wouldn’t need to blame it on PTSD. That’s the clearest case of proper use of deadly force I’ve seen. He was clearly in mortal danger, even after he turned the guy loose. That was also the best example of restraint I’ve seen.
I would have been busy mopping blood and brains from my store.
I’m not pleased with the outcome. I wish the vet had blown this scumbag’s $hit away. It would have saved the cost of prosecution and imprisonment AND…..AND probably the life of another person confronted by this perp down the road after he gets sprung in a couple years who either isn’t armed or not as skilled.
I’m sick and tired of these people. They have no place in ‘polite society’. I’m sick and tired of the damage they do to people’s lives, the taxes spent on dealing with them in the courts and then feeding, housing and providing their health care with taxpayer dollars (while some taxpayers have NO medical care), and the impetus they give to gun-grabbers.
I view this incident as a lost opportunity.
Bravo!
It’s an individual call, but I think the vet/cashier took too big a risk. A close quarters exchange of shots too often means no winner. I’d have shot the bastard the instant I could.
It’s hard to imagine not pulling the trigger on a guy who just a moment ago threatened you with deadly force and remains imminently capable of doing so.
This robber did the smart thing and walked out–but no way to know that’s what he’s going to decide to do at the moment.
The robber COULD have just rocked back, with the gun still held to his side, and easily fired a shot into Alexander–it’s a routinely taught retention-shooting technique.
Of course, the robber would likely have been shot through the head, but Alexander would likely still have caught one.
hard to imagine that’s a risk I would have taken, with a wife and kids to support.
–Andrew, @LawSelfDefense
Another question —
Where did the robber go?
Who did he hold up next? Did he shoot someone else that night?
We don’t know, of course, but the robber came into that liquor store with the express purpose of stealing money. He didn’t get any but I presume the motivation remains — he wants money.
Who’s to say he doesn’t go to the gas station down the block and rob the poor attendant there? And if that person isn’t armed or twitches the wrong way he ends up dead.
The defender in this video is very lucky, and very, very cool under fire. But the robber’s next victim — and there will be a next victim — may not be as lucky.
I hadn’t seen your comment when I posted mine, but I had the same thought.
Here’s the latest, from the shop clerk:
The armed clerk who defended a liquor store in Marionville says he’s positively identified the gunman, and police are working to find him.
Jon Alexander said he talked to police Wednesday afternoon and picked the man out of a photo lineup.
“The police know who he is,” Alexander said, adding that the man was arrested for vandalism at a nearby hospital soon after he left the store but was later released because the connection hadn’t been made to the attempted robbery at Beer 30, where Alexander works.
So there’s another question: if he was armed when he was arrested for vandalism at a nearby hospital, would he really have been released that fast? And if he wasn’t armed when he was arrested, where’s the gun now? And if the police truly know who he is, and have since September 5th, yet the police have made no statement… what’s up with that?
And would you have let him just walk away into the night with his gun like that? Knowing that he is, to coin a phrase, “armed and dangerous”?
Hear! Hear!
Live and learn. It should be known that a redistributive change philosophy is only possible in a democracy or dictatorship. Individuals must be able to project or wield superior force in order to effectively execute its principles and are often required to execute the principals.
I appreciate posts like these. I own a handgun. This instructive real-life situation along w/the triad will help in case I am ever confronted. The world is becoming more drug crazed.
http://www.lawofselfdefense.com
Could of course be very wrong, but Alexander may have just refrained from killing a fellow former vet.
Lots of PTSD going around, and lots of vets doing stuff they don’t understand how they could have done.
PTSD doesn’t usually lead otherwise law-abiding veterans to commit armed hold-ups of liquor stores. Vets with PTSD are far more likely to harm themselves or become a victim of a crime committed by others than anything else.
Just on that note, September is Military Suicide Prevention Month and if you know anyone who’s struggling, there are some resources here.
Indeed. It’s important to recognize that many, many people would not have had the same self-defense skills, and that’s okay. Thank you for this post.
Masterful projection of dominant superiority by the intended victim, I would think, played a part in no shots being fired.
This has the appearance of a confrontation between an alpha male and a beta male going mano y mano and the beta blinked.
Had it been a male perp vs a female who was assumed to be unarmed (yet was), I believe it would be more likely that this drama would have played out with the perp assuming an Alpha behavior mode thus provoking the victim to defend with fired bullets.
The dynamics leading to perceived vulnerability and perceived threat has a lot to do with how these scenarios play out.
Excellent insight. Thank you.
–Andrew, @LawSelfDefense
Andrew this story is very instructive.
What stands out to me is the fact that Alexander sized up his situation, he saw the gun, he raised his hand in order to move the other person’s hand down, and to immobilize him.
Something else to note: both people were standing. This gave the person who was confronted with the gun the opportunity to react in the manner that Jon Alexander reacted.
It is also instructive for another reason because, in my view it seems to put paid to the idea that George Zimmerman was brandishing his gun prior to his beat down…. at least that is my interpretation!!
It’s rather more complicated than that, I’m afraid. Alexander’s technique was solid, but hardly fool proof. Against someone of my level of training, for example, his hand technique would have been fruitless (and my training, while reasonable for a civilian, is hardly robust–no real-world combat fighting).
I’d be very wary to extrapolate from what an experienced combat soldier was able to do to what a regular civilian should be expected to do–including a George Zimmerman.
My expectation is that if that robber had run into someone even slightly less experienced and capable than Alexander is that he would have incurred a high-velocity projectile-induced vacuum to his brain stem. And that the inducement of such vacuum would have been legally justified.
–Andrew, @LawSelfDefense
Ooph. The more times I watch the video, the less sure I am. The move by the defender to deflect the robber’s gun hand does not look strong, looks easily overcome if the shooter had wished to, and there is a delay before the defender draws his weapon. One could make the argument the defender was every bit as lucky as the robber.
Yep.
And I might add, I really hope everything about this is legit. It’s hard to take everything at face value these days.
Any time you walk away from a gunfight, you are lucky.
The robber was clearly unprepared for resistance. Alexander got inside his mental reaction loop. This is something you can never count on, but is glorious when it works.
Two comments.
First, I doubt that Mr. Alexander’s military background was relevant, except as it prepared him psychologically for combat. If an enemy is a meter away with a drawn weapon, a soldier who has no weapon in hand is already in deep trouble and probably defeated. I don’t think the Army spends much time training soldiers in overcoming a handgun with bare hands. That’s a police/security type situation.
And in fact Mr. Alexander is a former prison guard, which is almost certainly where he learned that.
Second, while I applaud Mr. Alexander’s success in defeating this malefactor, I think he failed in his duty as a citizen when he allowed the man to leave with his gun. He should have held the man for arrest by police; at the very least he should have compelled him to drop his gun. Instead he allowed this predator to seek out another target.
Perhaps he did
That was a first class Oscar Sierra moment for Mr. Robber! Froze him and probably the only thought in his mind was getting out the front door alive.
…then changing his underwear!
My guess is that the robber was a local wineo who was known to Alexander.
Alexander strikes me as a pretty no-nonsense guy when it comes to serious social matters. I expect if that robber knew Mr. Alexander he would have waited for someone else to be on shift before walking in there with a gun in hand.
That’s just speculation on my part, of course.
–Andrew, @LawSelfDefense
Serpas are sh*t holsters and are an accident waiting to happen, which is why they’re banned from most reputable classes and ranges.
yes and no. A serpa is absolutely not a good choice for someone learning to use a holster or someone with some bad habits. A draw with incorrect finger placement on the release button can result in a negligent trigger pull if your finger slips inside the trigger well.
However, for someone who already has proper draw technique and finger placement it can be a very good holster.
Being that classes are usually about learning to use a holster properly, I can see why instructors would ban the use.
As for ranges… Public ranges that allow you to draw from any holster are becoming quite rare in my neck of the woods.
Andrew, what you said about Massachusetts is fascinating. If Alexander was charged with an assault in Massachusetts and sought your counsel what statutes would you cite to form a legal basis for a not guilty verdict?
That’s an easy one–none.
Massachusetts effectively has no self-defense statutes. The legislature has codified the Castle Doctrine (after the state supreme court ruled in a case that there was a duty to retreat in the home), and they’ve codified some aspects of battered spouse syndrome.
That’s it. Otherwise all of the Commonwealth’s self-defense law is case law.
Now you’re going to ask me what case law I would cite, but I’m afraid it’s a busy week for me and I haven’t time. 🙂
Hopefully, if Alexander lived in MA he would be sufficiently familiar with how things work here that he would not have uttered the relevant statement about his use of deadly force not being necessary.
–Andrew, @LawSelfDefense
I would hope that even in the Commonwealth a store clerk with a lawful permit to carry a handgun would not be charged under the circumstances you described.
Yes, someone as well trained as this clerk appears to be, would have told the officers that he felt in great fear of his life throughout the confrontation. Only his abiding respect for the sanctity of life kept him from firing at great risk to himself.
Of course in Texas ….
You’re obviously not from Massachusetts.
We had a case a few years back where a garage owner, after experiencing numerous break ins, decided to start sleeping in the garage at night, armed. Sure enough, it wasn’t long before the bad guys broke in again, and the garage owner met them with deadly force.
The garage owner was prosecuted based on the argument that he chose to lay in wait for the burglars to return and “ambushed” them, and that he could have simply called the police when he heard them breaking in.
I don’t recall the outcome of the case, but the outcome wasn’t really important to the prosecutors in any case. They were simply enforcing the message that in the Commonwealth of Massachusetts any use of deadly force is going to get end up with you “put to the test,” as in the old Salem witch trial days. If you “survive the test”, your use of force was justified. Until you have survived, however, we just don’t know, do we?
It would take me mere moments to identify a state prosecutor who would be more than happy to argue to a jury that a shooting of the robber in this scenario was not lawfully justified. Why? Because the clerk could have simply handed over the money, and left law enforcement to the police instead of taking the law into his own hands. After all, if the robber had wanted to shoot the clerk he would have simply walked in and done so–the very fact that the robber held back from pulling the trigger showed he had no real desire to kill. Only one person in that scenario had a demonstrable desire to take another life–the clerk.
Anyway, you can see how it would go.
And, yes, I’m planning to vacate the Commonwealth at the earliest opportunity.
–Andrew, @LawSelfDefense
It is truly frightening that such arguments would be permissible in a Court of Law in your State. As you know the situation is very different in Florida:
Just the other day, a pizza delivery man, sitting is his vehicle, shot and killed a man with a knife who attempted to rob him.
It was dealt with very quickly by the Brevard County Sheriff’s Department. The Sheriff said:
Can anyone explain why the static highmounted surveillance camera is moving during filming? Ain’t saying I smell a rat, but I’ve never seen a supposedly fixed mount video bounce like that.
The explanation someone over at This Ain’t Hell gave was that someone was probably videotaping a computer or monitor that was showing the video. So that’s where the movement comes from.
I don’t think there’s anything wrong with being a little bit skeptical about anything you hear on the news these days. It’s not like the media has never promulgated a story that turned out later to be not quite what it seemed.
Skeptical scrutiny is always a good idea. It either confirms the facts or reveals a problem. Done properly, no bad outcomes.
That’s actually not bad law. It’s certainly what I’ve always preached WRT self defense. “If the gun clears leather, it will go boom.” You still have time to change your mind. From the shop keeper’s POV, here, as soon as he detected the gun, he was justified in going into deadly force mode. You don’t have to wait until he has the barrel lined up on you or says “Stick ’em up.”
That was one lucky-arse robber.
[…] LEGAL ANALYSIS: Iraq Vet vs. Would-Be Robber. […]
“a round fired at that angle into the counter would almost certainly have ricocheted up to strike Alexander”
Really? How in the heck do you know that. Your knowledge of ballistics must be based on what you’ve seen in the movies. What material was the counter made of? What caliber was the Robber using. 380 Auto, .357 mag, or something really powerful? What kind of bullets were in the robber’s gun, solid point, soft point, or hollow point? Sheeesh. You need to have some facts and knowledge before you start shooting from the hip like that. Just like you should be somewhat proficient with the use of your firearm before you engage in an armed confrontation with an armed perp.
I’ve put in excess of 100,000 rounds through the 1911 I carry as a PDW on a daily basis. Don’t really recall how many thousands of rounds I’ve put through prior competitive handguns. I’ve been a competitive shooter of long guns and hand guns since I was 16 years old–the round count adds up after a while.
But I’m sure you’ve much more experience with firearms, right ChasMartel?
–Andrew, @LawSelfDefense
Your response to my comment is misdirection. I simply pointed out you had no basis to make the statement I quoted. Because you had no basis, you pulled the mine is bigger than yours argument our of your hat. Ya got nothing. BTW, it’s doubtful you’ve fired more rounds through a handgun than me, but that is irrelevant to my point.
I provided a great deal of empirical and experience-based knowledge of how pistol rounds deflect off various surfaces–which was precisely the issue you questioned in your post, as anyone reading this thread can readily confirm.
Sorry if that made you look like weak sauce, but there you go.
And if you’ve fired more rounds than I have through a pistol I’d like to know your corporate sponsor (I never had one, but I made good money, sponsored myself), your reloading set-up (mine is a Dillon XL65 with all options) or competitive match experience (my IDPA number is 13–thirteen–there are over 20,000 members now, and that’s only my most recent match experience, the last 15 years or so).
Time to step up, Chas. Or you’re nothing but boring.
I’m guessing boring.
–Andrew, @LawSelfDefense
Empirical knowledge? Nice try with another word deflection. How about some empirical evidence. Let me give it a try.
The pistola in the video looks like it’s a 38 spl. snub nose revolver. The countertop is probably one-half inch composite board covered with a formica like covering. In my experience with a similar handgun, there should be no problem with it penetrating into and through the countertop. If it’s a standard load, it won’t have much energy left but might still cause some damage once it gets through the counter. If it’s a P+ or P++ load, the clerk’s foot or lower leg might have been in the line of fire, and thus in danger. Doubtful, but possible the lowlife spent extra to get the more powerful rounds. Most of this is speculation, but it is consistent with what I see in the video. I see nothing that would lead me believe that a round fired into the countertop at that distance would ricochet.
I purchased my first reloading bench in 1973. A RCBS Rock Chucker. I’ve since acquired a progressive press to load handgun rounds. You just can’t resist the mine is bigger than yours argument, can you. I say you should stick to commenting on self-defense law and don’t venture in to technical areas where you are a bit weak on knowledge.
“How about some empirical evidence. Let me give it a try.”
Haha, you say “empirical evidence,” but I don’t think that means what YOU think that means.
Empirical evidence means I’ve ACTUALLY done it. Fired rounds will skip off most anything–including water!–if fired at a sufficiently small angle.
Indeed, the National Shooting Sport Foundation (NSSF) recommends a ricochet catcher, baffle, or eyebrow be installed at the top of earth berms to reduce the incidence of bullets escaping the range by sliding up the face of the backstop. (http://is.gd/HqkID8) Yet you’d have us believe that the harder and smoother surface of a formica countertop is incapable of doing the same? I guess the NSSF is trying to play the “mine is bigger” game with you, too, is that it?
Handgun bullets can certainly skip off of a formica countertop if fired at a shallow angle–I know, because I’ve done it. A robber’s handgun positioned near-level with such a countertop and fired into it would provide just such a shallow angle.
But, hey, it’s always subject to further validation, and it’s easy to video stuff these days. Perhaps someone has an old piece of countertop they can haul to the range and video their own experiment. (If you do, though, be sure to do it right up against the berm so the round doesn’t skip over.)
Yeah, boring was the right call.
–Andrew, @LawSelfDefense
Here’s some real life shooting at counter tops I’ve been a part of.
http://www.ottoroadshootingrange.com/Bowling_Pin_Shoot.html
Lots of ricochets off those metal topped tables at that angle. It’s a bit different than standing over the counter and pointing the muzzle down into a formica topped counter.
And do some of those glancing hits on the bowling pins skid off and continue on their way?
For sure they do–I’ve shot pins, too.
There’s little material difference between a bowling pin and a formica countertop.
–Andrew, @LawSelfDefense
“You need to have some facts and knowledge before you start shooting from the hip like that.”
LOL. It’s pretty much established that Branca has facts and knowledge about self-defense, including use of a hand gun. His sentence about ricochet could have been more artfully expressed, perhaps, but it’s silly to pick a fight over how likely a bullet fired from that close distance would strike the victim.
And Seriously. You. Guys. “you should be somewhat proficient w/your firearm before you engage in an armed confrontation?” LOLOL Tell you what. If I’m confronted with an armed intruder, and I have to hope my sparse practice w/my lil’22 is sufficient, I’ll ask the intruder to resked so I can get more proficient.
Not.
ChasMartel is a doofus.
Haha yourself, Linda. I’ve deflected hundreds of rounds off many types of surfaces into targets at varying ranges. These surfaces include dirt, asphalt, plywood, laminate countertops, car hoods, windshield glass, and probably some others I’ve long since forgotten.
Pistol rounds used have included ball, lead, JHP in calibers including 9mm, 40S&W, 10mm, 45ACP, 38 special, 357 Magnum, 357 Sig, and probably a few others I’ve long since forgotten. Oh, yeah, add 38 Super.
With shotguns I’ve done the same with various birdshot, buckshot (00), and slugs, in both 20 and 12 gauge. I haven’t done much of this stuff with rifle rounds, but then rifles aren’t relevant to the issue at point, in any case.
Might I ask, Linda, what your relative experience in such matters might be?
–Andrew, @LawSelfDefense
Oops, sorry Linda, I meant to direct that to Chasmantel, but no edit function here.
–Andrew, @LawSelfDefense
Andrew thanks for a legal break down of this incident, I so appreciate it. Funny how a legal discussion on how to protect yourself legally devolves into a nasty response from one of the many gun/ammo experts that exist in the world. Keep the legal insights coming brother!