The Daily Caller

The Daily Caller
              In this photo made Saturday, Oct. 5, 2013, Fresno County sheriff

Massad Ayoob: Fist vs. Gun – Disparity of force and the law

By Massad Ayoob, American Handgunner

Situation:

The big man has threatened to beat you to death, and you have reason to believe he’s capable of doing it. Now he shows up at your house, and begins to beat you …

Lesson:

Not everyone who violently attacks you will be a stereotypical criminal, and the justice system still has trouble recognizing your attacker doesn’t need a weapon to kill you.

Social scientists tell us by the time we turn 21, we’ve seen thousands of people “killed” on TV and movie screens. Those images shape our society’s values, sometimes in unrealistic and unhealthy ways. TV and movies can give the general public false impressions.

The guy was shot in the back? “It couldn’t possibly be self-defense — he must be a victim of cowardly, murderous ambush!” The deceased was shot more than once or twice, particularly with a relatively powerful gun? “Hey, when Gary Cooper shot a bad cowboy once with a .45, it knocked him off his feet! This shooting must have been motivated solely by murderous malice!”

Years of watching shows such as “CSI” on TV can lead the viewer to think if the spent casing was found in Position X, then without a doubt the shot must have been fired from exactly Position Y. And, horror of horrors, an armed citizen shot someone unarmed? In reference to one such case last year, I saw a CNN commentator literally scream into the camera, “Murder! Murder! MURDER!”

The Facts

Anyone who’s been involved in homicide cases for any length of time knows all of the popular beliefs listed above are misconceptions. Any number of dynamics can account for a bullet entering behind the lateral midline of an attacker’s body. Many factors can turn a violent assailant into a “bullet sponge,” who soaks up wound after deadly wound before he goes down.

Any shooter who has tried to retrieve brass after a range session absolutely knows the shooter’s position does not exactly correlate to where the spent casing ends up. And any medical examiner or homicide investigator who has ever seen the corpse of someone beaten to death knows a criminal assailant does not require a deadly weapon to kill an innocent victim.

Movies teach us to expect an attacker who resembles a street monster out of Hollywood Central Casting. The fact is, with surprising frequency, the attacker is someone who doesn’t happen to have a criminal record, and who is loved by family and friends — who genuinely see him as a good guy.
Earlier this year, I was involved in a premeditated murder trial in the Appalachians where all of these factors came together. I came to know the defendant and his wife, who asked me to keep their names out of this story because they have suffered enough from the trial’s negative publicity. The same seems fair for the family of the deceased. For these reasons, I am going to change two names here, the name of the defendant and the name of the man who was killed. All other names appearing in this account are real.

Prelude

The men on each side of the gun the night of this shooting had clean criminal records and were respectable citizens. One of the men, who I’ll call “Mr. Phist,” had an eye for the wife of the man I’ll call “Mr. Gunn.” Neither man had ever so much as met, but Mr. Gunn got wind of it. He touched base with Phist’s wife. He testified later she told him she wasn’t surprised, because her husband had a wandering eye, and Mr. Gunn had better be careful because Mr. Phist was a dangerous man who stood six-feet-three, weighed 300 to 350 pounds of solid muscle, and messing with him was a good way to get killed.

This was a definite concern for Mr. Gunn, who was of average height and had never been in a serious fight. A hunter and recreational gun owner with a concealed carry permit, he had long made a habit of keeping a pistol in his car, and bringing it into the house when he came home. It was kept out of reach of his little boys, but in a place where Mr. Gunn could get to for home defense.

Late on the night of Nov. 17, 2010, the Gunn family was asleep when Mr. Gunn heard a loud banging at the door, awakening him. He got up, and without opening the door, asked who was there. Mr. Phist, clearly in a state of rage, identified himself and verbalized his anger, claiming Gunn had put his marriage in jeopardy by talking to Mrs. Phist. In his verbal tirade, he swore he would “beat the life” out of the smaller man.

Gunn, wisely, never unlocked the door. Phist eventually drove off into the night. Shaken, Gunn called 9-1-1 and told the dispatcher what happened. Since this was a rural community with a limited police presence, he was told to simply call back if the man returned.

The Incident

Four days later, devastation occurred. It is approximately 8:00 p.m. The two little boys in the Gunn family were eager for Christmas, and even though it wasn’t yet Thanksgiving, decorating the house for the holidays is now in full swing. The doorbell rang, and Mrs. Gunn answered it. In moments, she was back inside, a look of grave concern on her face — informing her husband Mr. Phist was at the door demanding to talk to him.

Gunn’s mind immediately flashed back to the screaming rage he witnessed at his door four nights ago. He was glad his kids were asleep then and didn’t hear any of it. Fearing it would escalate again, he told his wife to take the boys into another room. Then, because he had every reason to be genuinely in fear of his life, he took his pistol from its high resting place and tucked it into his waistband behind his right hip.

The gun was a Ruger P345 he bought used from a friend a few years ago. Its hammer was de-cocked on a live round — the way he always carried this gun, with the lever up and off safe. Having been told all his life to load magazines one round short of capacity to save their springs and preserve reliability, his 8-round magazines had seven Remington 185-grain jacketed hollowpoint .45 ACP cartridges. After chambering a round, he never bothered to top it off; meaning a pistol capable of holding 8+1 rounds had only seven.

Pausing at the door, Gunn then stepped out onto the dimly lit porch area and closed the door behind him. Part of him hoped the man had simply come to apologize for his previous outburst. No such luck.

This was the first time he had seen the dreaded Mr. Phist face-to-face. The man towered over him, looking every bit of the 300-plus pounds he’d been described, and launched into a tirade. Philst’s wife had just kicked him out and he was holding Gunn responsible for ending his marriage of more than 20 years.

He angrily repeated his previous, ominous threat, “I’ll beat the life out of you!”

A punch came out of the darkness from nowhere, hammering into the right side of Gunn’s face like the kick of a mule. He felt his partial plate dislodge from the painful and stunning impact.

Reeling back and acutely aware of the situation — knowing his wife and children were inside and certain this enraged giant was not going to stop — Gunn reached for the Ruger with his right hand, and as soon as it cleared his belt, he opened fire on the enraged assailant.

Gunn then realized the big man was running away from him down the side of his property and watched him fall at the backend of the house. Not knowing what else to do, Gunn walked back inside and numbly placed his empty, slide-locked P345 on the kitchen counter.

Gunn’s brother, who had been working on a truck in the yard, sprinted toward the house. At the first shot, he raised his head, witnessing the exchange between his brother and Phist. He immediately called 9-1-1. Also nearby, Gunn’s father, who was staying in a motor home on the property, grabbed his shotgun and ran to help after he heard the shots fired.

Emergency response was swift. The Gunn home was located at the edge of the county line, and the dispatcher sent full ambulance crews from both counties to be fail-safe. Pulling in at opposite sides of the yard, two three-person crews rushed toward the downed patient with their gurneys. One gurney rolled directly through the “evidence field” in front of the house — which was in line with the spent brass from the gun fired from the porch. In minutes, police were on the scene.
Mr. Phist did not survive. And, a documented 12 minutes after the police arrived, Mr. Gunn was placed under arrest for premeditated murder.

Next, issues and answers