Mindset and decision-making are intimately related. One of the phrases we use for having made a decision is ‘I’ve made up my mind.’ While not a formal topic, the concept of mindset and decision-making was a clear subcurrent of thought at the 2016 Tactical Conference. While this wasn’t a formal topic, per se, it was a theme that ran through several presentations and side conversations. As my friend Mark Luell put it, “This [my life and my family] is important to me and I won’t let you take it from me.”
An early conversation I had was about our Mindset as Americans. The focal point of our conversation was an article in The Atlantic Monthly. The article described the difference between US soccer competition and soccer in the rest of the world. A key dissimilarity is that in the US, our children typically spend much more time playing and less time practicing individual skills. We’re eager to confront and control/dominate early as part of our culture in a way that is less common in the rest of the world. The common attitude of “I’ll shoot someone who’s in my house” is rooted in this piece of our American Mindset. Sometimes that works out, sometimes it doesn’t.
The article’s comment about developing individual decision-making skills resonated with me. I continue to be less sanguine that Force on Force training is the panacea it’s thought to be in the training industry. If we don’t teach people the process of decision-making and then just throw them in the deep end of the pool, how helpful is that in teaching them?
“The thing that makes elite players is decision making,” Lemov told me. “They need to integrate not just how to do something but whether, when, and why.” He sees parallels to the difficulty many American students have solving problems independently. “If you give [American] kids a math problem and tell them how to solve it,” he said, “they can usually do it. But if you give them a problem and it’s not clear how to solve it, they struggle.”
John Hearne’s presentation FBI Research: The Deadly Mix got me wondering if being a nice guy is just another form of trying to control the situation. Granted, it’s a different approach to control but maybe it’s just a matter of tone and style rather than substance.
Two of Tom Givens’ presentations had an undercurrent of decision-making. Deciding whether or not our personal protection equipment is ‘needed’ during the course of our daily lives is a serious choice. As Tom puts it, the only failures in his student incident database are the result of ‘forfeits,’ i.e., the victim was unarmed and therefore unable to resolve their problem. Being unarmed was a decision that didn’t work out well in those cases.
John Murphy provided me a video I had previously seen that relates heavily to decision-making. The officer’s action in the video demonstrates the clarity of his decision and how unhesitatingly he applied it.
Those of us who have actively been at this for decades have a very clear idea of our options, their consequences, and how to appropriately apply those options. Choosing options and being clear in your own mind about when and where to apply them is a critical part of the personal protection process.
The decisions we make almost inevitably determine the outcomes that result. Good Decisions lead to Positive Outcomes and Bad Decisions lead to Negative Outcomes. We all know that decision making is difficult in a broad array of situations. Having a framework for decision making can be helpful.
Skill development and to a lesser extent, ‘situational awareness’ are the most often taught or talked about aspect of personal protection. In the broad scheme of things, though, those are only a couple of aspects to the process of not being criminally victimized. Ultimately, skills and awareness are just inputs to our decision making process. The decisions we make are what will determine the outcome of any encounter.
It’s trendy now to view Colonel John Boyd’s OODA Loop as if it is a model that can help us ‘think faster,’ i.e., make tactical decisions more quickly than our opponent. Unfortunately, that’s just not the case. The O-O-D-A Loop is a representation that describes in a strategic sense how one party thinks during the course of the decision process. That is a far cry from being a usable decision model or even framework. Colonel Boyd never mentioned O-O-D-A as a tactical decision model, nor do I believe he intended it as such.
Those who wish to look to Colonel Boyd for a decision model would be best advised to read his Aerial Attack Study. Over 50 years after its publication it is still considered the manual for fighter combat. The Aerial Attack Study describes a decision process almost completely the opposite of the way most common taters describe the O-O-D-A Loop. By performing an in-depth analysis of the situations fighter aircraft could encounter, Colonel Boyd described exact maneuvers and counters our fighters could use to defeat the enemy. That’s a better framework for defining tactical decision making.
This post is the first in a series describing a conceptual framework for decision making. Several other people contributed thoughts to it and I thank them for their input.
Know the Rules and Have Adequate Skills were proposed to me as inputs to good decision making by my friend LTC (Ret.), JAGC John Taylor. In addition to them, I include Understand the Situation.
If we overlay these two sets of inputs, a graphic would look like this.
Finally, to make Good Decisions, we need to consider two levels of focus:
- Tactical – doing things right, our techniques and procedures
- Strategic – doing the right things, what is in our and our family’s best long term interests
What rules do we need to know?
- Use of force
- Use of deadly force
- Employer policy and cultural peer pressure are corollaries to the legal
- Other rules
- Firearms and other weapons’ safety rules
- Our personal core values
- Rules of ‘the interview’ (between predators and prey)
- Difference of criminals’ psychological rules from our own
- Changes from the (your) past
Knowing the legal rules bears some discussion. There are several excellent books about the legalities of using deadly force, such as:
The Law of Self Defense
However, there isn’t much material about the use of non-lethal and less-lethal force. This leads to some confusion in people’s minds about tools like pepper spray. One common tater opined that pepper spray couldn’t be used legally unless the victim had already been physically battered and the battery was continuing. While this might POSSIBLY be true in some States where citizens, or perhaps subjects, exist in an almost perpetual state of arrest, it’s certainly not true in most of the US, where the citizenry remains free.
As an example of relative importance, most law enforcement officers will never apply deadly force in their entire careers. On the other hand, they will use some kind of physical force on a regular basis. As private citizens, there are only a few situations that justify the use of deadly force on our part. Having the ability to employ some form of non-deadly force is an option that needs much more serious consideration than it is generally given.
Note also that of the ‘Other rules,’ only the Safety rules for firearms are commonly taught. Although the balance of the Other rules aren’t thought of, they will definitely be inputs to our decision making.
Since it’s probably the first thing we should consider, we’ll go into Know the Rules in more depth in the next installment. Far too many people don’t consider the Rules very much, especially the Other rules.
There’s a Safariland holster blowout sale on my webstore. Glock 17 and S&W M&P holsters at prices you can’t afford to pass up.
My colleague Grant Cunningham posed two interesting questions on his blog, which led to a lengthy Facebook discussion.
Question #1: “what are your biases or preconceptions?”
Question #2: “what have you changed your mind about in the last year?”
I gave a brief answer to #2 but I think they both deserve some elaboration.
Question #1: “what are your biases or preconceptions?”
I am very reluctant to design training for myself or others that is rooted purely in hypothesis or conjecture. I.e., I am very biased toward following the scientific method, as much as possible, when developing training paradigms.
The overall process of the scientific method involves making conjectures (hypotheses), deriving predictions from them as logical consequences, and then carrying out experiments based on those predictions. — https://en.wikipedia.org/wiki/Scientific_method
It’s important to note that testing is an inherent part of the scientific method. Testing implies some form of measurement. As a result, I believe that having performance standards is an important part of training. I think of training as ‘outcomes based’ rather than ‘input based.’
We have at our fingertips, via the Internet, an enormous amount of data available to us. At the top of this blog are links to a number of sources that I regularly read to gather information about armed encounters, shootings, gunfights, and gunbattles. I use each of those terms in a very defined way because I consider many terms used in the training community to be fuzzy and ill-defined. Fuzzy and ill-defined terminology does not fit particularly well in the scientific method.
One of the often parroted phrases I hear about gathering information from the Internet is “The plural of anecdote is not data.” I rebut this with the words of one of my accounting professors, “Accounting information is expensive to gather and is sometimes not worth it.” What he meant was that, at some point, you have to accept whatever information you have been able to collect and work with it to form an opinion.
Something I try to avoid is ‘cherry picking’ data that supports my hypotheses. Cherry picking is not always an intentional process, either; it can require a significant amount of intellectual rigor to avoid. I learned this years ago when I was Research Director of a large commercial real estate brokerage company. The brokers all worked specific geographical areas and the Vice President asked me to analyze the Zip Codes of their contact lists. As it turned out, only about 20 percent of the brokers actually had the majority of their contacts in their assigned areas, even though they thought they did. That was when I became a believer in writing things down and checking them periodically to eliminate unconscious errors. A while later, I created a database of five years of data from the Armed Citizen and found some patterns and trends I hadn’t anticipated.
To sum up my bias, I might say:
I’m not interested in conjecture. Tell me where your hypothesis originated, what data supports it, and how you measure the outcome(s) you expect your students to achieve as a result of this training.
Question #2: “what have you changed your mind about in the last year?”
My short answer to this question on Facebook was “The importance of manipulation skills vis–à–vis decision-making.”
I’ve been thinking about this for many years. In 2011, my presentation at the Rangemaster Tactical Conference was entitled The Myth of the Lone Gunman: Working with Family, Friends, and Significant Others.
At the Conference in 2014, my colleague Craig Douglas made the suggestion that I do a presentation about ‘Bad Shootings’ for the 2015 Conference. The results of my research changed me forever.
As many people know, I was part of the Rogers Shooting School for ten years, culminating with being Chief Instructor for five years. Rogers is the most elite and difficult shooting school in the world. Many police and military special units go there to train every year and get to eat a piece of Humble Pie every day of the five day Course. “We’re the best shooters in our Department, by far. Then we come here and find out we suck!” The Handgun Testing Program has no peer for difficulty in the entire training community. It is training on a level that only a select few shooters will ever get to experience. I am enormously proud of my association with the School and maintain a relationship to Bill and Ronnie to this day.
That being said, once I started doing my research on ‘Bad Shootings,’ which eventually morphed into ‘Negative Outcomes,’ I saw a vastly different set of priorities were important. Although I still believe performance standards are important, the level of those standards has changed in my mind. The NRA Defensive Pistol standards, probably at the Sharpshooter level, will suffice to solve almost every confrontation I have been able to find between an Armed Private Citizen and a marauding criminal. Truth be told, those standards would work for most police shootings also. The kicker about the NRA standards is twofold; 1) competence must be demonstrated repetitively and 2) the standard is 100 percent hits.
Once a person can shoot a pistol to a reasonable standard, it’s time to move on to thinking about the circumstances of personal protection and becoming proficient at decision making in that context. Decision making can be a very difficult task, especially when we are armed. Lack of proficiency, not just at marksmanship, but at gunhandling under stress, complicates this. Persons who are not Unconsciously Competent can easily become focused on the firearm rather the situation. Focusing on the wrong thing can lead to Bad Decisions, which in turn can result in Negative Outcomes.
These are the Negative Outcome categories I identified in my research. There are probably more.
- Chasing and shooting
- Downrange failures (shot an innocent while shooting at a threat)
- Lost/stolen guns
- Mistaken identity shootings
- Negligent discharges
- Self-inflicted GSW
- Unintentional shootings
- Police Involvement (arrests for non-shooting related incidents)
- Poor judgement
- Unauthorized access (generally by small children)
- Unjustifiable shootings
- Warning shots
As an example of one category, Unintentional Shootings, here’s a screencap of some of the stories I have collected.
Bad decisions have serious consequences and end up being punished in a variety of ways, some legal and some social. The legal consequences are obvious; the shooter goes to court and sometimes thence to prison. The social consequences of Negative Outcomes are less obvious. If a person accidentally shoots a family member, whether the criminal justice system gets involved or not, I doubt that family relationship will ever be the same. The particular incident I am thinking of occurred when a police officer shot his daughter, thinking she was an intruder.
Decision making has many aspects to it that people don’t often consider. Where you point a gun anytime you handle it is a decision that has to be made. Consider that the next time you’re in a gun shop; where are you going to point the gun as you pick it up to ensure that you don’t muzzle anyone? This relates to another reason I am not fond of the overhand method of slide manipulation. During administrative gunhandling, which happens far more than shooting, the overhand method simply does not give the same level of muzzle control that the slingshot method does. I regularly have to correct students about muzzling themselves when using the overhand method. Using the slingshot technique, not at all.
Note that the Decision Making Process starts long before an incident. For instance, having a flashlight and then practicing with it is a decision. Not having one and/or not practicing with it is a Bad Decision. There are many other possibilities too. Failing to devise emergency plans and then discuss them with your family is a Bad Decision.
Look at the list of Negative Outcomes. The category ‘Downrange Failures’ is the only one that is marksmanship driven. All the rest relate to Decision Making and gunhandling. That’s why I changed my mind.
Up until now, Friday Fundamentals has focused on mechanical issues. This issue is going to focus on mental processes. An incident that was in the news recently drives the discussion.
“It scared me absolutely to death,” said Sherry McLain. She was loading groceries into her car this past Saturday in the crowded Walmart parking lot on Old Fort Parkway in Murfreesboro.
That’s when a strange man approached, surprising her, and she pulled her revolver. “I have never been so afraid of anything in my whole life I don’t think,”
There are a number of problems here that led to her arrest.
- Her level of fear was irrational. Witnesses and surveillance cameras confirmed that the man simply spoke to her from 10 feet away.
- Being startled and being legitimately rationally afraid are two entirely different things.
- She doesn’t understand the difference between setting boundaries and enforcing boundaries.
- Because she doesn’t understand the difference, she didn’t comprehend that when we are defending ourselves, there’s a hierarchy involved. First, we set the boundary and then we enforce it, not vice versa.
- As a result, she now has another issue; the criminal justice system. She was arrested for aggravated assault and reckless endangerment. Based on the current information, I doubt that will go well for her.
Let’s make something clear at the outset, when you pull a gun on someone, you’re threatening to kill them. It doesn’t matter whether you say a word or not, you’re threatening to kill them. Some people apparently don’t understand that and the gravitas it carries. You better have a good reason for doing so. Irrational fear is not a good reason. Simply being startled is not a good reason.
The question of how this might have been avoided brings us to the issues of controlling fear, setting boundaries, and enforcing boundaries.
Controlling fear is a complex topic that is not often discussed in the training community. If anything, the community tends to promote fear, “I was in fear for my life” having become almost a mantra. The woman in the incident invoked it but the police were unimpressed. The difference between reasonable fear and irrational fear is frequently left out of that discussion. It’s somewhat pathetic that there’s better literature in the competitive swimming community about how to control fear than there is in the self-defense community. Learning to control fear is a process beyond the scope of a single blog post. It behooves those who carry deadly weapons to do some research on the topic.
The next issue is boundary setting and boundary enforcement. This is a process more easily trained than controlling fear. Boundary setting and enforcement are simply elements of a process. All we need to do is understand the process and practice it.
It’s important to understand that we set boundaries with communication and barriers, not with tools. The communication can be either verbal or non-verbal. The most obvious form of barriers are the homes we live in, assuming the doors and windows are closed and locked. If a criminal fails to respect the boundaries we set, then we use tools, in this case weapons, to enforce the boundaries. We don’t use tools at the outset to set our boundaries.
One of the biggest issues we have as a society is that we have forgotten or gotten out of the habit of saying NO! That can be done either verbally or non-verbally. Training to say NO! should be a primary lesson in every class on personal protection and people should practice it on a regular basis. Simply raising an outstretched hand and shaking the head can accomplish a lot. Keep in mind that a great deal of communication is non-verbal; we can use that fact to our advantage.
A proper sequence that would have kept this woman out of trouble might be as follows:
Recognize that being startled is not the same as being afraid. She was startled because she was task fixated on loading her groceries in the car, i.e., she had not one bit of situational awareness. Most people are like that. In this sort of a situation, looking around before you get to the car, as you arrive at it, and then after loading each bag goes a long way toward avoiding being startled. Positioning the car for safety helps too. In the sense of color or awareness codes, she was in White or Unaware.
If she had been in Yellow or Aware and seen him approach, there’s nothing wrong with being proactive and raising the hand in the ‘stop’ gesture. That’s the first step in setting a boundary. Her mental state at that point could be described as Orange or Alert.
And yes, at this point, we could invoke the boogeyman of ‘The 21 foot rule’ that Dennis Tueller himself says has become terribly misconstrued. But the circumstances where a criminal runs up to someone in a WalMart parking lot and slashes their throat are far less common than ‘incrementing,’ which is a standard way for criminals to operate. Whether those throat slashings are in fact, reality or figbars of overactive imaginations remains to be seen.
If the person continued to advance, a default verbal response of ‘Stop, don’t come any closer’ clearly sets the boundary. Any decent person would stop at that point. If the person doesn’t stop, it’s an indicator that something nefarious is developing. The mental state shifts to Red or Alarm. Once the intent of the other party becomes more clear, then we can make a decision about which tool we want to employ to enforce the boundary. We can also determine what barriers we might employ in the process. That, too, is a discussion for another time. The boundary setting and enforcement decision process is what’s important in this particular case.
Another thing to consider is that any time we get a gun out for defensive purposes; be that from a holster, purse, nightstand, safe, or whatever, there’s a possibility it’s going to be fired, either intentionally or unintentionally. The more scared we are, the higher that possibility. Therein lays one of my chief objections to brandishing, which is what the lady did; the possibility it will culminate in a Negligent Discharge.
Since thinking about the ‘worst case’ is something many people like to do, let’s examine the possibility of a Negligent Discharge in this situation. Say the woman had an ND as she pointed her revolver at the man or the other people present. It’s probably a good thing for all of the parties involved that she had a revolver and not a striker fired autoloader. If her irrational fear had caused her to have an ND, what would be her eventual statement in court? Something to the effect of “He asked me for a light, I was scared so I drew my pistol, I had an Accidental Discharge, which resulted in a death. It was an accident.” Most likely, she’d go up the river for Manslaughter. Fortunately, that particular Negative Outcome didn’t happen. What did happen was the Negative Outcome of ‘Police Involvement,’ to wit, getting arrested.
If this lady had understood the awareness and boundary processes and then used them properly, she probably would have gone home instead of getting arrested. That’s something for all of us to consider.
Several Negative Outcomes were brought to my attention this week. One was yet another incident of someone shooting their spouse, thinking it was a burglar. She died as a result of one shot to the chest.
The husband told police it was an accident. He told officers he woke up around 4:15 Saturday morning and heard noises in his house … He told investigators he grabbed his gun and when he saw a light on and someone standing in the distance, he took a shot. He said the person he ended up hitting once in the chest was his wife.
This sad situation bolsters my contention that when we pick up a pistol at home, we have to pick up a flashlight at the same time. That’s why I made flashlight shooting an integral part of The Tactical Professor’s Pistol Practice Program. To get some repetitions in and reinforce the habit for myself, I went to the range this week and shot the entire NRA Defensive Pistol I marksmanship program using a flashlight.
As a curiosity, I also used a timer instead of going by the PAR times in the program. The pistol I used was a Beretta Jaguar in .22 Long Rifle. Many in the industry poo-poo the .22 as a defensive tool but .22s have worked for me. An aspect of .22s I like in the practice context is that shooting several hundred rounds in one session isn’t punishing, either physically or financially. I shot it at my gun club but the way Defensive Pistol I is structured, it can be shot at just about any indoor range. That’s an aspect of the program I really like.
What I did was to have my pistol, my flashlight, and the timer on a stool in front of me. The target was downrange at the specified seven yards.
When the timer went off, I would pick up my pistol and flashlight simultaneously, assume the cheek position, and then shoot the specified string of fire. For the phases requiring loading the pistol on the clock, I picked up the pistol and magazine, loaded it, and then picked up the flashlight. After each string, I recorded my times. The NRA provides a scoresheet but it is set up for Pass/fail scoring, so I made my own scoring matrix.
I checked the target after each string to make sure that I had the required 100 percent hits. At the end of each phase; Pro-Marksman, Marksman, etc., I marked the target with blue dots to cover my hits.
For most of the program, I used the cheek technique.
The Expert phase requires shooting around both sides of the cover. When shooting around the left side, I continued to use the cheek technique. When shooting around the right side, I used the Harries technique.
The Distinguished Expert phase doesn’t specify shooting around both sides of the cover. However, it does requires eight runs instead of four, so I shot four around the right side and four around the left side.
I was able to maintain the 100 percent standard and got a good idea of my times to accomplish each Phase.
Isn’t it just common sense to ensure you know what you’re shooting at?
That question was posted on my Claude Werner, Researcher and Analyst page.
It’s an important question that we need to put in perspective.
Not intending to be pejorative but there is no such thing as ‘common sense.’ What we refer to as ‘common sense’ is actually learned behavior based on our past experience.
For instance, as adults, we consider it ‘common sense’ to not stick our hand in a fire. When we were three years old, we didn’t know it would hurt and probably found it out the hard way.
Similarly, we as gun people would consider it ‘common sense’ to not look down the bore of a firearm. If you gave a pistol to an Australian Aborigine, one of the first things they would do is look down the bore because in their worldview, knowing what’s in a hole is really important. Even Al Gore did it when he was searching for the Internet in Viet Nam. That was before he realized he had to invent it.
Ninety-nine percent of what most people know about firearms usage they learned from TV and the movies. In those media, there is never any ambiguity about the shoot/no shoot decision. As a result, when people get placed in a real set of circumstances, they do indeed default to their ‘training,’ which is the media programming. So they tend to make mistakes and shoot, even if it’s not appropriate. I once bemoaned to a colleague that my Threat Management classes didn’t sell. His response was “Nobody buys a gun with the idea that they’re not going to use it.” His comment put it in perspective for me.
The Los Angeles Times recently published an Op-ed piece entitled Why the police shouldn’t use Glocks. I find it shortsighted and the author’s reasoning incomplete and faulty.
Although I prefer a Double Action Only or Double Action/Single Action gun for my personal use, I perceive several issues with the article.
The half-inch difference of trigger travel may not sound like much, but it can be the difference between life and death.
The statement is a core issue. There’s no control statement about how many successful uses can be attributed to the GLOCK’s shorter trigger. The first shot is both the most important and, with DA guns, the most often missed. Aside from the possibility of ending the fight sooner, the issue of errant rounds flying around the community is also disturbing.
A number of major and minor agencies use guns with much longer double-action triggers that are just as easy to fire deliberately but that are much harder to fire accidentally.
That’s a well couched statement. If we substitute the term ‘hit with’ for ‘fire,’ it completely falls apart. Making the gun go off is just part of the equation; hitting the intended target is equally important.
Much as I like them, double-action triggers are NOT just as easy to hit with deliberately as a Glock’s. If we include shooting in reaction time, vis–à–vis deliberately, the equation shifts even more in the Glock’s favor. For smaller statured officers, it’s sometimes nearly impossible to grip and shoot a double action gun well. Having taught numerous smaller military personnel to use the M9 pistol, I can say unequivocally that grip size and trigger reach can be a major problem.
Granted, many officers can learn to shoot a double action gun reasonably well with plenty of training and regular practice. However, that’s not the reality of police administration, either from the hiring or the budgetary perspectives.
What critics should be addressing instead is the brutal reality that short trigger pulls and natural human reflexes are a deadly combination.
In a shootout with a criminal, that’s exactly the point that the author seems to miss. A well-placed source provided some insight to me about the FBI’s decision to issue Glocks years ago, after resisting them for years. “The New Agents could shoot them so much better than the Sigs it was striking.” This from the law enforcement agency with perhaps the most extensive firearms training program in the world.
All equipment has issues associated with it. The accidents cited in the article are tragic and regrettable. However, arguments similar to the author’s could be made for putting speed governors on police vehicles because police officers sometimes get into crashes, with resulting casualties, during pursuits or requests for service. I don’t see any call for that. If avoiding unintentional casualties is the main issue and only criterion, why not just go back to revolvers?
The author didn’t make much of a case for his opinion other than citing a few Negative Outcomes. Without providing the other facets of the decision making process and then weighting the various aspects, it’s a weak argument. The selection of a firearm, whether for police service or individual use, is a complex one. The ability to use it safely is key. However, the ability to use it effectively is just as important.
I am 62 and not nearly as strong as I once was. So long as he is only shouting, that’s where it will stay. Touch [me], I’m too old to fight. I will shoot.
An Internet Common Tater
Merrill “Mike” Kimball encountered one of the worst Negative Outcomes, being convicted of murder. Leon Kelley experienced the worst of them all, getting killed.
There are a number of items relating to decision-making, both during the confrontation and preceding it, that bear discussion in this case. Decisions are often made based on attitude and feelings, rather than facts. Most gun control arguments are rooted in feelings and we gunowners belittle anti-gunners for that. However, don’t think that the same reliance on fact rather than feeling can’t come back to haunt us in the courtroom.
An aspect of the Kimball shooting that I find interesting is that the ‘disparity of force’ aspect swayed the jury not at all. Leon Kelly was half a foot taller and outweighed Merrill Kimball by over 100 pounds but the jury didn’t care. The above Common Tater has the same attitude Mike Kimball displayed on October 6, 2013. Unfortunately, the jury didn’t see it that as a justification. A fear of serious bodily injury has to be seen as ‘reasonable.’ As a Maine defense attorney wrote on his blog
note the use of the word ‘reasonably’ [in the Maine statute]. Whimsical or irrational beliefs attributed to the defendant do not suffice.
Just because some of us are older (I’m 60) doesn’t mean we can think every assault is cause to respond with deadly force. This is why I tell every Defensive Pistol class I teach:
Failure to have an Intermediate Force option implies that all you are willing to do to protect yourself and your family is kill someone. That’s not a position I care to put myself in, nor should any rational adult.
For now, I’m not going to address the wisdom of even going to the scene of the confrontation, all things considered. However, if Mr. Kimball had carried a can of pepper spray with him, he probably wouldn’t be facing the probability of spending the rest of his life behind bars. I hear many objections to carrying pepper spray. Without exception, they are foolish, yet speciously alluring. As the prosecutor commented about the Kimball case:
People have a right to carry firearms, but the law only provides for use of firearms in defense in very limited and particular circumstances, and this was not one of them.
I would much rather carry a can of pepper spray than a spare magazine or a defensive knife. The chances you will need a spare magazine are infinitesimal. The reasons I hear for carrying a spare magazine tend to be:
- Carrying an extra implies you know what you’re doing.
- That you know that most semi-auto malfunctions are mag-related.
- That you know to top off after the fight.
- That you know that 6 rounds of .380 isn’t that much.
- That there might be another adversary.
The chances you will need a non-lethal response to an ugly situation are much higher than any of those reasons. Being shoved, even repeatedly, is not sufficient legal provocation for a killing. Even if it was, do you want to kill someone in front of your wife and son, as Mr. Kimball did, unless it’s absolutely necessary? But if all you have is a hammer, everything looks like a nail.
Ponder the implications the next time you strap on your heater.
I’m shocked because I thought the case was a question of manslaughter. Hung jury, possibly guilty of manslaughter, but more likely ‘not guilty.’ It just seemed to me that the relative sizes of the two people made it clear that my client was in a jam that he couldn’t get out of except to use a firearm.
So said the defense attorney for Merrill “Mike” Kimball after his client was found guilty of murder for fatally shooting 63-year-old Leon Kelley in 2013. Obviously, things did not come to pass the way he thought they would. Regardless of the outcome of an appeal, being convicted of murder is a Negative Outcome.
Cast of characters for the drama:
- Stan Brown – 95 year old owner of Brown’s Bee Farm
- Karen Thurlow-Kimball – shooter’s wife. Managed the farm and sold the honey
- Merrill “Mike” Kimball – shooter (5 feet 11 inches tall, 170 pounds)
- Damon Carroll – Thurlow-Kimball’s son
- Daniel Lilley – Kimball’s attorney
- Leon Kelley – victim (6 feet 4 inches tall, 285 pounds)
- Kathleen Kelley – victim’s wife, Stan Brown’s daughter, and witness
- Craig Rawnsley – Kathleen Kelley’s son (6 feet 2 inches tall, 205 pounds)
- Robin Rawnsley-Dutil – victim Kelley’s stepdaughter and witness
- Daryl Rawnsley – deputy chief of the Cumberland Fire Department
- Libby Adams – Brown’s daughter-in-law, bookkeeper for the bee business
- Matthew Crockett – Assistant Attorney General
- John Alsop – Assistant Attorney General
Events preceding the day of the shooting.
- Thurlow-Kimball begins working for Brown at the farm in 2009, when Brown’s son died.
- Thurlow-Kimball becomes manager of the bee farm.
- Brown eventually includes Thurlow-Kimball in his will, leaving the bee business and a part of his property to her. The family deeply resents this.
Oct. 6, 2013
- Around 1 p.m., Craig Rawnsley calls Thurlow-Kimball and accuses her of wrongdoing. He tells her “things were going to change at his grandfather’s farm.”
- At the time of the phone call, Merrill Kimball had just gotten off his boat and gone to a friend’s house to watch a Patriots game. He drank two rum and cokes while he was there.
- Thurlow-Kimball immediately calls Brown’s daughter-in-law, Libby Adams. Adams tells her the Kelley family plans to change the locks on the bee farm sales shop.
- The shop contains about two dozen jars of honey, totaling about 700 pounds. The honey, which contractually belongs to Thurlow-Kimball, has a value between $4,000 and $7,000.
- Rawnsley-Dutil calls her mother and Kelley, her stepfather, at their home 40 miles away, and asks them to come to the farm. The senior Kelleys then drive to the Bee Farm and arrive before the Kimballs.
- Thurlow-Kimball enlists her husband and son to help her get the honey out of the shop. They drive to the shop in two vehicles.
- Around 3 p.m., Kimball and his family arrive to load the honey jars.
- Rawnsley-Dutil and her brother follow the vehicles up the driveway on foot. Kelley drives up in his 3½-ton truck with the license plate ‘AWFUL.’
- Kelley family confronts Kimball family.
- Craig Rawnsley blocks the shop door and accuses the Kimball family of trespassing.
- Kimball asks who Kelley was. The two men had never met before that day.
- Kathleen Kelley calls the police.
- Thurlow-Kimball refused to leave the property, insisting on waiting for a police officer to arrive.
- Kelley put his hand on Kimball’s shoulders, spins him around, and follows as Kimball backs down the driveway. Kimball later states that Kelley shoved him five or six times total.
- Kimball retreats roughly 35 feet being followed by Kelley until he is in the driveway nearly to the treeline. The driveway extends to his right and left, at this point.
- Kimball, who is licensed to carry a concealed weapon, draws his Ruger LCP .380, and fires three shots into Kelley’s torso at a range of 4 -10 feet.
- Kelley falls down after being shot and clutches his abdomen.
- Robin Rawnsley-Dutil immediately takes a photograph of the scene and then begins recording a video.
- Kathleen Kelley remains on the 911 call after her husband is shot.
- Rawnsley calls his brother, Daryl Rawnsley, deputy chief of the Cumberland Fire Department, for medical assistance.
- Kelley is transported by ambulance to a hospital and dies shortly thereafter.
- The state police sergeant who was the first officer to arrive at the scene said he could “smell the odor of liquor” on Kimball. Kimball did not seem impaired, other than failing to immediately respond when when the sergeant commanded him to put his hands up and get on the ground.
- Kimball maintains the shooting was done in self-defense. “The man attacked me. The man pushed me back. I was in fear for my life. I nearly fell down, and he kept coming.” Kimball’s words were captured on a police cruiser’s onboard camera.
- Kimball is questioned but not arrested.
- A video re-enactment is recorded by Kimball at Brown’s Bee Farm on November 4.
- Kimball is indicted on the charge of murder.
- He posts bail and remains free.
April 2015 (not necessarily in chronological order)
- Kimball rejects a plea offer to manslaughter before the start of the trial.
- The trial commences on April 6, 2015.
- The prosecution contends that Kimball could have continued to retreat by turning left or right down the driveway rather than shooting.
- Maine is one of 16 states whose self-defense laws require retreat for as long as safely possible before using deadly force.
- The prosecution alleges that Kimball took a concealed pistol and an extra clip [sic] of ammunition to Brown’s Bee Farm because he expected trouble from the Kelley family.
- Kelley family members admit in court that Thurlow-Kimball was not trespassing and that they had no right to tell her to leave.
- Members of the Kelley family make several contradictory statements about the events leading up to the shooting.
- Rawnsley-Dutil states that Kelley put his hand on Kimball’s shoulders shortly before the shooting, spun him around and followed Kimball as he backed down the driveway. She admits Kelley may have shoved Kimball additional times.
- Craig Rawnsley admits he put his hand on Carroll’s shoulder to stop him from moving and states “Damon (Carroll), he is not as big as me.”
- Assistant Attorney General Alsop describes the shooting as: “Bam. Bam. Bam. There was no pause. Merrill Kimball fired three rapid shots right in the middle of Leon Kelley.”
- The video re-enactment recorded by Kimball is played for the jury.
- The state’s chief medical examiner testifies that the first shot had most likely felled Kelley. He also stated that “All three of these were potentially fatal.”
- The cellphone photo taken after the shooting is shown to the jury.
- Craig Rawnsley testifies that Kelley wouldn’t have “escalated the situation” if he had known Kimball was armed.
- Defense Attorney Lilley says “They brought him [Kelley] along because he was mean and he was a badass. They brought him along because he was big.”
- “The issue for me in this case is there were three shots fired and whether he was acting in self-defense in all three shots or less,” said Justice Roland Cole.
- The jury deliberates for six hours over two days. They have the options of finding him guilty of murder, manslaughter or acquittal.
- The jury finds Kimball guilty of murder on April 15, 2015.
- The possible sentence is 25 years to life in prison.
- Kimball is taken into custody.
- Kimball’s lawyer indicates the intent to appeal, which cannot be filed until after Kimball is sentenced. Sentencing will be scheduled in the next six weeks.
The above account is based on the trial reporting of Scott Dolan, Staff Writer for the Portland Press Herald newspaper.
I’ll look at the implications of this over the next few days.
In every encounter, there is an element of chance.
–John Hall, former head of the FBI Firearms Training Unit
In previous parts of this series (I-IV), the concept discussed was physical awareness and positioning in relation to an adversary or situation. A recent incident captured on video relates to a different but similar concept: emotional awareness and positioning.
In the incident, a veteran observed a bum aka ‘homeless person’ wearing a mixed service uniform while panhandling. He was justifiably incensed, as would be most veterans. “I was angry. I was frustrated. I was sad” he said. I don’t blame him. However, what resulted from his feelings was neither smart nor legally justifiable.
The veteran aggressively challenged the bum from a distance, then closed with him, pursued him across several lanes of traffic, and continued to pursue him on the other side of the boulevard. As the incident unfolds, the bum tries to disengage, is verbally apologetic, and changes direction several times attempting to escape. The entire time the veteran is loudly shouting, verbally forces the bum to remove part of his clothing, and then blocks the bum’s escape path. The incident went on for several minutes.
While I sympathize with the veteran’s frustration, the simple fact of the matter is that he let his emotions get away from him. A couple of relevant declarations made at this year’s Rangemaster Tactical Conference come to mind.
- John Hearne, in his presentation Performance Under Fire, made the statement “You’ve got to keep your emotions under control.”
- My colleague Nick Hughes mentioned to me in conversation a question he poses in his book, How To Be Your Own Bodyguard. “Are you doing this because you have to or because you want to?” He then related a personal anecdote where a person had to remind him of his own question.
When the veteran/bum video was posted on Facebook, I had two responses.
- Good way to get stabbed.
- Regardless of what I was doing, if someone acted toward me the way the veteran did toward the bum, I would have painted him orange in a New York second. And the police would have then told me to have a nice day. It was aggressive challenging behavior that anyone would be justified in feeling threatened by (although not sufficiently to employ lethal force, which is why I advocate always carrying pepper spray).
If we go looking for trouble, we had better be prepared to find it. Make no mistake: verbally challenging someone, shouting at them, chasing them, forcing them to remove their clothing, and then blocking their escape route is looking for trouble. Such a situation always has branching possibilities (if, then, else) that people don’t generally consider before jumping over the edge of the cliff.
- If the bum had pulled out a knife, then what would have been an appropriate, or even possible, response at that point? I make the assumption that all itinerants I encounter are armed with some kind of weapon.
- What if the bum had run out in front of a car and been struck and killed?
- What if a car had hit the vet while he was chasing the bum across the street?
- What if they had gotten into a physical conflict and ended up rolling around in traffic?
There are other possibilities also, but those are good examples of possible Negative Outcomes well within the realm of possibility. In any of those cases, the situation would have gone downhill for the vet like an avalanche.
So, let’s go back to Nick’s question: was the vet doing this because he had to or because he wanted to? That answer is quite clear, he wanted to. He felt the need to defend the honor of his service and the service of his fellow veterans.
Unfortunately, it’s very hard to provide a legal, or even moral, justification for using force to defend honor. Even if no legal repercussions arise, moral ones can. If the bum had run into traffic and been struck and killed, how do you think the veteran would have felt for the rest of his life, even if no charges were filed against him?
John Farnam’s saying “Avoid stupid people, stupid places, and stupid things” is definitely apropos in this situation. All three of those elements were broken. Jeff Cooper alluded many years ago to the fact that the more ‘rules’ we break simultaneously, the more possibility we will incur a problem. When we lose control of our emotions, that’s when we start unconsciously breaking rules, whether they are legal rules or just rules of good judgment and conduct.
With every decision we make, we are setting ourselves up either for success or failure. Keeping a check on our emotions helps set ourselves up for success. Letting our emotions get out of control is good way to set ourselves up for failure.