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.”
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.
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.”
The robber decides he’s had enough and leaves the store, covered by Alexander’s muzzle as he departs.
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 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.DONATE
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