Category Archives: The Ayoob Files

Lessons From The Zimmerman Case

Situation:

Artful manipulation by the mainstream press turns a routine shooting into a media lynching, complete with show trial.

Lesson:

There are many — tactical, legal and even social.

On the night of Feb. 26, 2012 in Sanford, Fla., a single 115-gr. 9mm Sellier & Bellot jacketed hollowpoint bullet exploded from the muzzle of George Zimmerman’s Kel-Tec PF-9 pistol. It was a shot that would divide a nation and begin a chain of events to captivate our country like no murder trial since the one involving O.J. Simpson. It ended the life of a 17 year old who was led to the bullet by a downward-spiraling lifestyle of drugs, violence and machismo.

The evidence, including cell phone records and Facebook messages of the deceased Trayvon Martin, showed he called himself a “gangsta” and nicknamed himself “No Limit Nigga.” He was negotiating to illegally buy a handgun, and was apparently involved in marijuana trafficking. These breadcrumbs also revealed his interest in street fighting, and he was angry an opponent beat him using a “martial arts mount” — making him want a rematch. Also, he was disappointed one person he punched out didn’t bleed enough.

Trayvon had been expelled from high school and was caught with drugs and stolen jewelry. These acts didn’t go through the criminal justice system because school authorities wanted to keep their crime statistics down. He was so out of control his mother kicked him out of her home in Miami Gardens, and sent him to live with his father, who was seeing a woman in Sanford. Hence, why young Mr. Martin was there on the fatal night. Evidence revealed he had a penchant for “lean” — a drug cocktail made with codeine or other cough syrup, and candy and sweet beverages such as the Skittles and Arizona Fruit Juice Cocktail Watermelon drink he was carrying at the time of his death.

None of those facts would be seen by the jury in the Zimmerman case for the simple reason he didn’t know about them when he shot Trayvon, and therefore weren’t foundational to the act for which he was being judged. Trayvon’s grieving parents hired plaintiff’s lawyers Natalie Jackson and Benjamin Crump, who in turn brought in public relations expert Ryan Julison, who brought their theory of the case to TV talk show hosts and other powerhouse media personalities. Almost overnight, the plaintiff’s theory had been presented to the entire country as if it was fact. The evidence showed otherwise.

The Prosecution Meme

The plaintiff/prosecution theory was this: Trayvon Martin was a harmless child (1) walking home from the store with Skittles and iced tea (2). He was then profiled for being African-American and for wearing a hoodie in the rain (3) by a white racist vigilante (4) named George Zimmerman, a wannabe cop (5) and self-appointed captain of the Neighborhood Watch (6). Zimmerman called the police (7), who ordered him not to follow Martin, but Zimmerman got out of his car (8) and pursued him anyway — violating a lawful police command (9). He then confronted Trayvon Martin (10). There was an altercation (11) during which Zimmerman sustained some minor injuries (12), before he shot the unarmed youth (13).

The issues were parsed more finely in the trial, which began with the opening of jury selection on June 10, 2013, and ended with a complete acquittal on the following July 13. Those 13 issues cited above were the foundation of the State’s charge of murder in the second degree — a foundation needing to be destroyed, brick after hollow brick, and replaced with facts and reality. The defense team, led by attorney Mark O’Mara and his co-counsel, Don West, went to work with this angle. Let’s look at their success, and some teachable moments for law-abiding armed citizens.

Issue By Issue

Part 1 and 2 above have already been discussed. Though legally a minor, Trayvon Martin was old enough to enlist in the Marine Corps at 17. He was at least 5’11” tall, according to the autopsy. But according to reporters, his mom described him as standing between 6’2″ and 6’3″.

In a family portrait, Trayvon is the tallest person in the picture, while in the security camera inside the 7-Eleven where he bought the Skittles and watermelon drink, appears to tower over the clerk who is on record as being 5’10”.

Profiling? Scratch this third point. Zimmerman explained, on the night in question, Martin’s aberrant behavior — loitering in the pouring rain, walking aimlessly and looking in windows — made him suspect a possible burglar casing a future job. Though one TV network edited the dispatch tape to make it sound otherwise, Zimmerman didn’t even mention Martin was black until the dispatcher asked for a description.

What about Zimmerman as white racist? Au contraire. Zimmerman was one-eighth black himself, on his mother’s side. Just 60 years ago, he wouldn’t have been served in a white restaurant in Sanford. With the Klan riding high, the sheet-heads would have called him an “octoroon.” He was first deemed “white” by the press, but when they learned he was listed on official documents as Hispanic (his mother is from Peru), the media coined the term “White Hispanic.” One fellow claimed to have searched the computer archives of the entire history of a major newspaper, and learned the paper had never printed the term “White Hispanic” until this case.

A squad of FBI agents assigned to thoroughly investigate Zimmerman for evidence to make this a hate crime, determined in the spring of 2012 there was nothing there. Zimmerman had many black friends, had mentored African-American children and had publicly taken up the cause of a black man who had been beaten by a white — and Zimmerman thought the police were covering for him. This pushes the fourth issue off the table.

The jury was able to see there was no vigilante element to this incident. Vigilantes dispense their own justice; they don’t call the cops as Zimmerman did. Besides, Zimmerman knew those cops could appear at any moment — and they did, about a minute after the fatal shot. While Zimmerman had taken relevant classes in the past and considered a career in criminal justice, the Sanford Police Department’s Neighborhood Watch coordinator had offered him a uniform and a patrol car, and he turned both down.

He had also been elected to lead the Neighborhood Watch by his neighbors, and was not at all self-appointed. In any case, at the time of the shooting, he was not on any kind of patrol, but merely driving to Target to buy groceries. He was wearing the pistol he was licensed to carry, just as any of us reading this magazine might likely do. Cross off allegations 5 and 6, above.
“Pursuit”?

Zimmerman did call the cops (actually, the non-emergency dispatch number), hardly the act of a man filled with malice or intending a crime (item 7). However, he never violated a lawful order because no lawful order was given. The dispatcher testified he had no authority to give orders, and it was policy not to. The dispatcher asked Zimmerman what direction the suspicious person had gone.

After, Zimmerman can be heard exiting his SUV on the dispatch tape. He becomes short of breath and there’s wind in the background. The dispatcher figures out what’s happening and asks if Zimmerman is following the man. Zimmerman replies, “Yeah.” The dispatcher says, “We don’t need you to do that.” Zimmerman says, “Okay,” and the wind quickly stops and normal breathing returns. This is solid evidence he stopped following at this point, and is consistent with his statement to police. He then began to return to his car … and was ambushed en route.

Those who sought Zimmerman’s conviction said he “pursued” Trayvon Martin. No, he merely followed him briefly to see where Martin was going, and then stopped and turned back. “Pursuit” implies intent to capture: Police pursuit is intended to end in arrest, pursuit of game implies intent to kill and eat the quarry, and we’re allowed the pursuit of happiness so we can possess happiness. Whether or not it’s smart or tactically sound for the private citizen to follow someone who might be a burglar to report a location to police, it is in no way against the law.

Why did he do it at all? Consider while the dispatcher has no authority to give orders, a dispatcher is the one who answers and is therefore a voice of authority. This voice asks you for information. You have been through Neighborhood Watch training, which emphasizes you act as eyes and ears. Would you not feel a need to gather the information to answer this question? This is why points 7 through 9 carried no weight in court.

The Confrontation

Even among gun owners and the concealed carry community, Zimmerman received heavy criticism for confronting Martin. However, the overwhelming majority of the evidence indicates it was Martin who confronted Zimmerman. Rachel Jeantel, the female friend Trayvon was talking to on the phone in the moments before his death, said he told her he was almost to the place where he was staying.

Trayvon was a long-legged athlete, a 17-year-old football player. The 5’7″ Zimmerman, 11 years older with a long-standing weight problem, wouldn’t have been able to chase him down — especially with Trayvon having a head start to get out of view. Therefore, the location where the deadly encountered occurred meant Trayvon Martin would have doubled back.

In the brief exchange of words before it went physical, both Ms. Jeantel and the defendant said Trayvon uttered the first challenging words. Put it all together, and the instigator of the confrontation has to be Martin, not Zimmerman. The only injuries on Martin — except for the single gunshot wound — were on his knuckles; Zimmerman’s nose was smashed and swollen in the pictures taken at the scene, and the back of his head lacerated and bloody, consistent with having been banged on the sidewalk as Zimmerman described. Ms. Jeantel testified before the phone went dead, she heard Trayvon shout “get off.” In street slang, “get off” can also mean a command to fight, short for “get off the fence,” and would be consistent with the evidence of Trayvon Martin’s fascination with, and participation in, street fight culture.

Being watched or followed with obvious suspicion, solely because of your race, is a common experience among African-Americans — and enough to make anyone legitimately angry. Ms. Jeantel testified Trayvon told her he was being followed by a “creepy-ass cracka,” and young Martin also referred to Zimmerman as a “nigga.” She later said on “Piers Morgan Live” in her culture, “cracka” was no longer a derogatory word for white people, but a term to identify someone like a security guard. I have yet to hear this definition anywhere else.

However, if one accepts the definition of Ms. Jeantel, we have it from her own lips Trayvon thought he was being followed by someone with a security-related function … and knowingly attacked him anyway. Ms. Jeantel also told Morgan “nigga” was not a racial pejorative, but merely a word for any male. If Mr. Morgan believes this, he’s invited to drop by the New Black Panther Headquarters, shout “Hi, niggas,” and get back to us with his report of how it went for him.
The overwhelming weight of evidence and common sense alike tell us Trayvon Martin initiated the physical confrontation. And that’s what counts in both law and logic. No matter how righteous it may seem at the time, anger never justifies physical assault. Thus, the 10th point of the plaintiff/prosecution trope is struck off the list.

Altercation & Minor Injury

Elements 11 and 12 as listed above are classic examples of minimizing the other side’s argument to make your own point — which is something of a “dirty debate trick.” Words mean things. One could call the Vietnam conflict an “altercation,” but the word insults the loved ones and the memories of the more than 50,000 Americans who died there. Surviving Vietnam vets will tell you, “No, sir, it was a war.”

This is why so many in the criminal justice community rolled their eyes when they heard this event called an “altercation.” Within the first 48 hours, trained and experienced police investigators determined Zimmerman had been beaten by Martin, was down under his attacker in a martial arts “ground and pound” he could not escape, and was getting his skull smashed against a hard surface.

It was, in my opinion, disingenuous for the prosecution to try to convince the jury the shooting wasn’t justified because Zimmerman hadn’t been hurt badly enough yet. Any graduate of Logic 101 — let alone law school — knows or should know the whole purpose of self-defense with lethal force is to prevent death or great bodily harm. If you wait until you’ve been shot to return fire, for example, you’ve failed in prevention.

Similarly, if you wait until your brain has been turned to jelly or is leaking out of your head through an open skull fracture, you’re too late. Indeed, an unscrupulous lawyer might argue if you waited until after you believed you were mortally wounded to pull the trigger, you acted out of unlawful revenge rather than perfectly legal prevention. The extent of injuries already received — except as a reasonable predictor of more and worse to come — was irrelevant, and it appears the jury saw it as well. Scratch elements 11 and 12.

Disparity Of Force

Many people, even some who should have known better, could not get past the 13th and last element mentioned earlier here: the perception if an armed person kills an unarmed person, it must be wrong and punishable. The courts have long since recognized a principle called disparity of force. This is a situation in which the ostensibly “unarmed” person has such a great physical advantage over their opponent, death or crippling injury is likely to result the longer the conflict continues. This disparity becomes the equivalent of a deadly weapon, warranting the other person’s choice to use a deadly weapon in self-defense. (See American Handgunner’s Ayoob Files entry titled “Fist Vs. Gun” in the Sept/Oct 2013 issue in the online digital editions, for more on this topic.)

Disparity of force can be illustrated in a variety of scenarios: unarmed attackers outnumbering a victim, huge size and strength disparity, much greater skill in unarmed combat or any of several other elements. One such element is position of disadvantage. Here, pinned in what eyewitness John Good described as a “ground and pound” by Martin, Zimmerman was all but helpless to stop the beating.

Zimmerman couldn’t escape — the reason why the “stand your ground” principle was not applied by the defense, even though the pundits erroneously linked this hot button topic to this case — and he had no reason to believe the potentially fatal beating was going to stop. Moreover, his head being smashed against concrete was really little different from a man with a concrete block smashing him in the head; either way, the contact was likely to result in death or great bodily harm if not brought to a halt immediately.

Defense co-counsel Don West alluded to this in his opening statement, when he told the jury Martin was “armed with the sidewalk.” And this is all before you look at Zimmerman’s statement declaring Martin saw his gun and was reaching for it! The jury came to understand this, too — which is why the clueless meme of “unarmed murdered by the armed” fell on its face in the end.

Lessons

There are several learning points here. After this highly publicized case, I wouldn’t be surprised if enrollment in Neighborhood Watch programs dropped significantly. Lesson: Few good deeds go unpunished.

Despite the furor this case raised among gun prohibitionists, the Kel-Tec PF-9 obviously saved Zimmerman’s life. Lesson: You never know when you’ll need the gun you’re licensed to carry — so carry it wherever you legally can.

It’s popular to say, “Never talk to the police.” But if Zimmerman hadn’t, he likely would have been arrested that night. The recorded interviews and reenactment saved him the ordeal of testimony and cross-examination, while still getting his story across. Hell, Zimmerman even took a lie detector test at the police station (voice stress analysis) and passed. Had it not been for the freak firestorm of politicized publicity, it’s unlikely he would have ever been charged. I personally would have said much less before having legal counsel with me, but talking to the police worked in this case. Lesson: Let the police know it was the other guy who attacked you, so they know what to look for as they investigate.

In the world of iPhone cameras, consider using yours to record at least sound and even video if possible. If Martin’s attack on Zimmerman had been recorded, I doubt he ever would have gone to trial. Conversely, if the plaintiff’s meme had been true, a discreet camcorder in Trayvon’s pocket would have sent George Zimmerman to prison by now. Lesson: Patrol car dash cams and TASER Cams have saved many cops from false allegations … and can save you, too.

There’s much to learn from this case. Books will be written about it, and I hope my friend Attorney Andrew Branca writes one. He sat through the trial in the courtroom and blogged about it daily at www.legalinsurrection.com. His insight as a lawyer, and particularly the comments of the countless trial attorneys who posted their take on things there, are most instructive. My own observations on the matter are found in more detail in my blog, beginning mid-July 2013, at www.backwoodshome.com/blogs/massadayoob.

I wish to express condolences to the families involved on both sides. If Trayvon Martin’s mother didn’t love him, she wouldn’t have practiced tough love and kicked him out and sent him to his father when he became uncontrollable at home. The Zimmermans have been through financial devastation, death threats and public excoriation — all undeserved. There are no winners in things like this. Finally, congratulations to Mark O’Mara and Don West for the defense, and to the honest witnesses called by both sides … and to a jury, which I believe did Justice.
By Massad Ayoob

Tell us what you think about the Zimmerman case; we want your opinion! Go to: www.americanhandgunner.com/category/the-ayoob-files

To own the entire 27-year Ayoob Files collection in PDF format for only $35, go to: www.americanhandgunner.com/ayoob-files-archive

Order Your Printed Copy Of The American Handgunner Jan/Feb 2014 Issue Today!

Download A PDF Of The American Handgunner Jan/Feb 2014 Issue Now!

The Mass Killer, The Cop and The Armed Citizen

Situation:

A neighbor has escalated from strange to full psycho, and
is rampaging through the neighborhood shooting people. Only one cop has
arrived … and you have a Glock with which to back him up.

Lesson:

The ability to fight back can be the difference between horror
and heroism — but the press doesn’t want to admit it.

Prelude

Gunshots and screams echo through a quiet, classic suburban neighborhood as a cop and armed citizen move together quickly toward those terrifying sounds. They take cover behind a big tree as they spot the suspect, a black semi-auto pistol in his hand. The good guys both shout commands, but the gunman — moving fast — raises his own weapon to kill them, even as their own fingers go to their triggers …

Background

Located just west of Akron, Ohio, the Copley Township has a population of just over 17,000 within its 21 square miles, and a police department consisting of some 30 well-trained officers. In the late morning hours of August 7, 2011, an atrocity occurred in the quiet community — proving extreme criminal violence can occur anywhere, at any time.

Our suspect, Michael Hance had been voted “most helpful” by his high school classmates: but he was 51 now, and time changes people. He lived with his girlfriend of some 20 years in a house she and her brother had inherited from her late father, whom Hance helped to nurse through a long, sad period of dementia. While some neighbors found him helpful and courteous, others disliked him and even feared him. Unemployed for some time, he was known to sit in his yard in a kayak and paddle the air, and to scream violently at a neighbor’s child.

Hance was described as delusional, while others viewed him as depressed; it would later be reported herbal remedies represented the extent of his only mental health care. While many noticed his mental deterioration, none thought it serious. Never institutionalized, he legally owned firearms. In 2005, he bought a 6″-barrel Smith & Wesson Model 586 Blue Steel .357 Magnum. Five days before the incident, he purchased a 10-shot Hi-Point .45 autoloader from the same pawnshop.

The Johnson family, who lived next door, had been friends of the original owner and complained to Hance about how run-down he had allowed the inherited house to become. A tarp on the roof, torn-up ground instead of a lawn and a dilapidated car became a real eyesore.

Hance had been bitter toward them ever since. Craig Deiter, the brother of Hance’s longtime girlfriend, was concerned about the situation and came up with his family from Kentucky to visit. On the morning in question, the Dieters were next door talking with their old friends, the Johnson’s, when Michael Hance snapped.

The Killing Spree

With six rounds of Remington semi-jacketed .357 hollowpoints in his S&W, Michael Hance sets out to settle his vendetta. A speedloader, filled with the same ammo and another quick-loader with soft nose Magnum rounds, rests in his pocket. He also has the .45 loaded with Remington jacketed hollowpoints, a spare 9-round magazine of the same ammunition and one more magazine of 230-gr. CBC hardball.

The murders begin in the driveway between where Hance lives and the Johnson home. Hance shoots neighbor Russell Johnson, 67, once in the torso and once in the head, and pumps five rounds into his girlfriend’s brother. He then chases Johnson’s wife Gudrun and shoots her from behind three times — once in the back and twice through the buttocks. She falls, and he stands over her and executes her with a bullet to the back of the head.

Hance finds the Johnson’s granddaughter Autumn, 16, and her friend, Amelia Shambaugh, 16, in a black Saturn SUV in the driveway and fires through the windows. He kills Autumn in the front passenger seat and Amelia in the back seat. Some witnesses describe the murderer as wielding a gun in each hand.

Hance reloads the .45 and either intentionally or accidentally drops the .357, which now holds two live rounds and four fired casings. Then, he roams away from the Johnson home, looking for more victims.

Also left behind in his wake, is his longtime girlfriend, Rebecca Dieter. He shot her through her right arm and into her chest. She laid still and played dead as — according to witnesses — Michael Hance stood over her body, calmly reloading. She’ll be his only surviving victim this day.

People in the neighborhood have heard the shots and, recognizing the danger, are running from him. Some, he ignores. Others, he chases and doesn’t get close enough to harm them. Not everyone is so lucky. Bryan Johnson, 44, the son of Russell and Gudrun, collapses in a driveway with six gunshot wounds, including a fatal shot to the head.

The youngest object of the madman’s hatred is Scotty Dieter, age 11. Hance is chasing the child down the street when he sees another neighbor looking at him. He slows down — as if preparing to shoot — and then realizes the neighbor is pointing a Glock pistol at him! Hance abruptly turns and runs out of the neighbor’s line of sight.

Safe for now, Hance looks around and sees the young boy run into another house. He circles the place, looking for entry, and finally breaks in. Scotty has fled for shelter in the home of a neighboring child, Dae’Shawn Bagley, age nine. The boys were hidden in the basement by the time Hance confronts Dae’Shawn’s mom, Melonie Bagley, who is trying to get her two smaller children upstairs to safety.

Hance puts his gun to her head and snarls, “Where’s the little boy?”

Melonie Bagley defiantly screams, “There’s no little boy!” Frustrated, the murderer turns and begins to search for the child, giving Melonie time to scoop up her two little ones and sprint to safety.

But Michael Hance now searches the basement, finding Scotty behind the furnace. Hance’s evil now reaches its peak: without a word, he raises his gun and shoots the little boy in the head, killing him instantly and spattering blood all over Dae’Shawn as he cringes in his own hiding place. The Dieter child will be Hance’s seventh murder victim.
And his last.

Hance now races up the stairs, through the door and out into the street. He hears male voices shouting commands at him, and he turns to see two armed men by a tree pointing guns his way. One is the neighbor with the Glock. The other is a uniformed policeman with an AR-15.

However belatedly, Justice has arrived for the monster Michael Hance.

Keith Lavery’s Perspective

Keith Lavery, 40, had stayed home that quiet Sunday morning to tend to his 10-year-old son, who was sick in bed, while his wife, daughter and younger son went to church. They were blessedly spared from the morning horror about to unfold. When he heard the first gunfire and screaming, Lavery thought it might be a suicide, but the next volley convinced him otherwise.

Now a criminal justice instructor, Lavery had spent 20 years as a sworn law enforcement officer, beginning as an MP. As he called in to 9-1-1 to report shots fired, he raced upstairs to scoop up his son and bring him downstairs to ground level, where he tucked him away behind a sofa and told him to stay there.

Then, he ran back upstairs to the master bedroom, where the Glock 23 his wife carried on duty as an officer was secured on a high shelf in the closet. In the agonizingly long seconds it took him to retrieve the separated magazine, insert it into the pistol and rack the slide, he felt things start to go into slow motion. By the time he confirmed the .40-caliber pistol had a Hydra-Shok cartridge chambered, his police training had kicked in.

Rushing downstairs, he told his son to stay put behind cover, then cautiously made his way out the front door with his phone and pistol toward a solid fence for some cover. In moments, he saw a tall man running down the street. Though he had lived in this neighborhood since 2005, he hadn’t been acquainted with the reclusive Hance. All he saw was a man with a black semi-auto.

As they make eye contact, Hance did a stutter-step, seemingly to ready himself to shoot. Lavery told me he didn’t think Hance noticed the gun in his hand until he raised the Glock and took aim — prompting Hance to run out of sight. Lavery again called 9-1-1 to describe the suspect and his approximate location.

Seconds later, the first responding patrol car pulled into Lavery’s view, driven by Copley Police Officer Ben Campbell, who emerged with his Colt AR-15 A3 Tactical Carbine patrol rifle. Campbell and Lavery recognized each other immediately — they had worked together in the past when Lavery was still a cop.

They moved together toward where Lavery had last seen the suspect. They heard gunfire, and literally “went to the sound of the guns,” covering each other as they rapidly but cautiously advanced. They were now at a big tree near the house where they’d heard the gunfire, the Bagley home.

As they were moving, Campbell told Lavery he ought to go back to his house and protect his son. Lavery responded he wasn’t going to leave Campbell alone to deal with this monster.

At this point, Dan Gannon, a retired officer who lived in the neighborhood and was unarmed, arrived to help. Knowing an unarmed man couldn’t help with this, Lavery asked him to go to his home and keep an eye on his boy. The man complied.

And then, Michael Hance burst from the house in which he had just murdered little Scotty Dieter, his .45 in hand. Keith Lavery now had a focused crisis to deal with.

Killer Down

As the mass murderer explodes into view, 20 years of policing make Keith Lavery a creature of his training and experience. “Get on the ground,” he roars in command voice. “Get on the ground!”

He is aware Officer Ben Campbell, beside him, is shouting something similar. But instead of obeying the commands, the running man swings his pistol up, aiming it toward them and — it seemed to Lavery — toward him in particular.
Lavery fires without a sight picture, opting for point shooting. In his mind, he thinks he fired twice, though in actuality it was three times. He hears a very loud “crack” to his side and realizes Campbell has triggered his .223, though he doesn’t realize the officer has also fired three shots. Hance keeps running, and for an instant, it seems to each of the good guys as if Hance hasn’t been hit, but then he pitches to the ground and lies still.

Their guns still up and covering the threat, Lavery and Campbell cautiously approach. The black Hi-Point pistol has wound up in the armpit of the gunman’s crumpled body, not in-hand. Carefully, Lavery passes his Glock to Campbell and swaps for the officer’s handcuffs, and moves in to secure the suspect. There is no resistance as he clamps the bracelets on.

In the emotion of the moment, Lavery snaps, “Why did you do it?!” He hears Campbell utter something similar. But there is no response. He sees Michael Hance’s labored breathing cease. The man’s eyes appear to glaze over and Lavery knows he is watching the monster die.

There are sirens in the distance, coming closer. From the volume of the gunfire, neither man can be sure this murderer was the only predator. Campbell hands the Glock back to Lavery, who carefully circles the outside of the house to make sure there are no more perpetrators in sight. Backup officers are arriving now. The scene is pandemonium. One of the first responding backups enters the house, and discovers the bloody corpse of little Scotty Dieter.

In the following hectic moments, one uniformed lawman asks Keith Lavery what he’s doing there and then tells him to get out of the crime scene. It’s a sign of things to come.

Aftermath

It was later said Hance’s rampage was the worst mass murder to take place in the state of Ohio. In September of 2011, the prosecutor’s office publicly ruled the use of deadly force against Michael Hance by Copley Police Officer Ben Campbell and by Keith Lavery was justified.

The autopsy showed two Hornady TAP .223 rounds — fired by Ben Campbell — struck Hance: one of which caught his arm, while the other pierced his torso, striking him dead. It was later reported a private citizen with a concealed carry permit and a handgun on his person was driving through the neighborhood with his lady on a motorcycle when the shooting took place and, when he heard the gunfire, exited the scene.

In May 2012, Ben Campbell’s courageous and decisive action earned him a place among 34 law officers presented the America’s TOP COPS award at the White House by President Barrack Obama. In March 2013, he received the Congressional Badge of Bravery. In April 2013, the Summit County Council presented commendations for bravery to Officer Campbell and to Dae’Shawn Bagley, the little boy who watched in horror as Hance murdered Scotty Dietz.

No such public recognition has been given to Keith Lavery, or to the unarmed retired cop (and another unarmed, off-duty policeman) who responded to the scene.

Lessons

Reading through the police reports on this incident is a horror story and a profound lesson is revealed: the strength of the armed trumps the helplessness of the unarmed. There were people who locked themselves in their home, while others ran into the nearby swamp behind the neighborhood and climbed out of windows. There was the brave, but helpless, mom who screamed, “There is no little boy!” Who can blame them for not stopping a monster they had no wherewithal to defeat?

Nor can I fault the armed citizen who unknowingly drove into the situation, not having any idea what was going on, and exited the danger zone with the woman he loved. Most CCW instructors tell their students to do exactly this in such cases.

It was fortunate Lavery and Officer Campbell knew each other. An unidentified citizen with a visible gun approaching a responding officer could create a mistaken identity issue.

We live in a nation of more than 300 million citizens policed by some 800,000 cops, who work 40 hours of a 168-hour week — of course not counting time spent in court, training or while away on leave. To their credit, the Copley Township Police got there quickly.

According to the official report, the first 9-1-1 call came in at 10:55:57 a.m. Police were dispatched to the scene at 10:57:11. Lavery’s first call came in at 11:00:19 a.m., describing what are now believed the shots at Rebecca Dieter. Campbell reported on-scene in the neighborhood at 11:00:37. Lavery’s second encounter after he drove the killer away at gunpoint was phoned in at 11:01:01. And, at 11:05:21 a.m., Ben Campbell radioed in the suspect was down.

Yes, this is how fast these things happen. The cops got there 21/2 minutes after the dispatcher picked up on the first call — an excellent response time. But, it was still too late to save the victims.

Other lessons: If a crazy neighbor hates you, it might be a good idea to carry a gun on your person and be ready to instantly respond if he acts out homicidally. A reconstruction of the crime scene shows the running Hance was 49 to 58 feet away from Campbell and Lavery when they fired on him; no easy target.

Campbell, with an AR-15, hit him two out of three shots and dropped him, while Lavery did not score a hit. Does this provide a rationale for good guys to have AR-15s maybe? Lavery was point-shooting instead of precisely aiming at a fast-moving man over 50 feet away — a lesson there, too.

Don’t ignore crazy people. Many who saw Hance’s aberrant behavior did nothing about it. He wound up murdering seven people, including three innocent children.

Have your gun ready to go, where you can reach it swiftly. How many of Hance’s victims might have survived if they had done so?

Finally, remember in the politically correct world of American politics and media, heroism may go ignored. Ben Campbell deserved every award he received; he is one of a growing list of cops who saved lives by riding alone to the sound of the guns and not waiting for backup.

But, in a world smart enough to recognize Campbell’s courage, how can our society be foolish enough to ignore the courage of armed citizens like Keith Lavery? Or the unarmed retired cop Dan Gannon, who still went toward the threat instead of away from it on this terrible day in Copley?

G. Gordon Liddy once wrote current cops talk about retired lawmen in the past tense, as if they were dead. Keith Lavery, who first used a Glock to drive the wolf back from the bunny it was chasing, put himself back in the line of fire to end the threat to his neighborhood. The fact he was then promptly ignored and marginalized in the aftermath says a lot. If it was because he was merely an armed citizen — no longer an active police officer — then the failure to recognize his contribution is nothing short of disgraceful.
By Massad Ayoob

Read More Ayoob File Articles

Order Your Printed Copy Of The American Handgunner Nov/Dec 2013 Issue Today!

Download A PDF Of The American Handgunner Nov/Dec 2013 Issue Now!

Fist Vs. Gun: Disparity Of Force

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.

Issues And Answers

Autopsy revealed eight gunshot wound tracks from seven bullets, all but one clearly entering behind lateral midline. Trial began on Feb. 4, 2013, in the court of Circuit Judge Eric O’Briant in Logan, W.Va. The prosecution argued a jealous husband had murdered a perceived suitor of his wife, shooting the unarmed man several times in the back — and arming himself before the confrontation constituted the element of premeditation.
The night of the shooting, five spent .45 casings were recovered from in front of the porch. The following afternoon, two more were discovered near where the dying man had fallen; this, the prosecution maintained, meant Gunn must have walked 40 feet forward and fired two more execution shots into the “victim,” who had collapsed and was rendered helpless.

Gunn wisely retained Brian Abraham, former District Attorney of Logan County, to defend him. Abraham’s management of this case, I think, is a template for future defenses in cases of this nature. This case presented a number of issues needing to be addressed.

Firstly, Spent brass does not correlate exactly to shooter position. Remember the six responders and their two gurneys, one of which left tracks through where the first five spent casings were found? Many lawmen and other people walked through the same area. The state’s own Firearms and Toolmark Examiner from the crime lab testified factually and honestly too many factors to list here were inconsistent between lab testing and assured reality — points he clarified in Abraham’s expertly delivered cross-examination.

The prosecution then brought in an expert witness, a young engineer who had never been involved in a ballistics trial before, disputed the state’s expert analysis by claiming the location of the spent cases absolutely correlated to where they would land. The state’s real expert insisted the casings could have been kicked, caught in shoe treads or picked up in the treads of the gurney wheels and redeposited where they were eventually found; the state’s outside expert stipulated the casings had to be execution shots. Abraham tore him apart in his cross-examination.

Shots in the back were a critical issue. When I was on the stand, I explained the dynamics of action/reaction paradigms, and demonstrated on video how a man can easily shoot seven shots from this type of gun in under a second and a half. I also demonstrated how the human body can turn 180 degrees in half a second, and how those time frames could intersect in a situation like this one. We showed the jury a training film I had produced for the American Law Institute and the American Bar Association, in which I was shot multiple times in the back with Simunitions. In the criminal attacker role, I spun away from the legitimate defender who was shooting back at me.

When you’re shooting as fast as you can to save your life and your nearby family from an irrational, violent man, it takes a relatively long time to react to something unexpected — which in this case was the other man suddenly breaking off the attack. But, “seven shots”? We showed the jury on video the significant muzzle flash of the Remington Express 185-grain JHP, the same lot of ammunition the evidence showed the defendant was using. He never saw a muzzle flash, and after the savage blow to his head, the next thing he saw was the other man running away.

An experienced fighter can train himself to keep his eyes open after such a blow — so he can block or parry the next blow, and see his target to counterpunch — and the reaction of an untrained person such as Mr. Gunn is to instinctively close the eyes. Because of what Phist did, Gunn couldn’t see him unexpectedly turning away in time to stop his defensive stream of fire.

The “power of the gun” issue came up here, certainly not for the first time in such a case. The medical examiner who did the autopsy spoke of how powerful a .45 was and how devastating the hollowpoint bullets were — implying a terrible unfair advantage and malice on the part of the shooter. When my turn came on the stand, I simply pointed out the arresting officers carried essentially the same amount of stopping power: a 9-shot department-issue Smith & Wesson Model 4566s, all loaded with Gold Dot .45 hollowpoints.

But, the medical examiner dropped a bomb. The fatal shot of the seven fired had gone through the left ventricle of Phist’s heart. Asked by the prosecutor how far a man so wounded could have traveled, he answered adamantly, no more than 10 feet — which fueled the state’s theory of the execution shots.

This testimony occurred on Wednesday, February 6. It was too late for the defense to retain its own forensic pathologist to counter the testimony and I was due on the stand the next day. Courts often accept testimony on these matters from us who are extensively trained homicide investigators, but a pathologist has more credibility. I had with me for other reasons a textbook by pathologist Abdullah Fatteh, which explained why wounds of the left ventricle are the least likely among heart shots to cause rapid death, and even a study by the state’s witness’s own mentor showing men shot through the heart going great distances and even shooting back.

However, I remembered a classic case from Dr. Vincent DiMaio Jr.’s authoritative text, Gunshot Wounds, in which a man whose heart was shredded by a close range shotgun blast ran a far greater distance before falling. I didn’t have it with me, so I phoned Marty Hayes and Jim Fleming of Armed Citizens Legal Defense Network. Within hours, they had it faxed and e-mailed to me, and I read it to the jury the next day, showing them the state’s theory pertaining to Gunn taking execution-style shots as totally false.

All evidence has to be correlated! Gunn, his wife, his brother, and his dad had all stated from the very beginning the shots were fired as fast as a trigger could be pulled, and in one continuous string of fire. Three impartial ear-witnesses heard the same. A neighbor lady bathing her grandchild when the shots were fired said it sounded like “a string of firecrackers.” Another neighboring couple agreed, with the deer-hunting husband saying it sounded like one long, echoing rifle shot in the woods.

Brian Abraham had me explain how long it would take for a man to run 40 feet, and why there would have had to be a distinct pause between the first five shots and the last two if the state’s theory was to be valid. My final statement before it went to cross-examination was if the prosecution theory was true, we would have to discount the testimony of all seven eye- and ear-witnesses, and suspend the laws of time and space.

Disparity of force was a key element here. It means when an ostensibly unarmed man is so likely to kill or cripple you, his physical advantage becomes the equivalent of a deadly weapon, and warrants your recourse to a gun or knife or whatever in self-defense. Gunn was dramatically outmatched by his much bigger and stronger attacker, and already stunned by a blow to the head so brutal it had knocked his teeth loose. He knew a man this irrational was a threat to Gunn’s wife and children as well as to him. The man could take his .45 and kill them all once he had overpowered Gunn. The defendant was indeed facing deadly force, and Brian Abraham drove that home to the jury effectively throughout the week of trial.

The Verdict

On the afternoon of Friday, Feb. 8, 2013, the jury returned a verdict of not guilty. The long ordeal was over. Under West Virginia law, a conviction on the charge of premeditated murder would have resulted in a mandatory sentence of life imprisonment without possibility of parole. Instead, a good man went home to his family to rebuild his life.

There are no winners here. The acquittal meant merely a wrongly accused man did not lose as much as he could have lost. His actions certainly saved him from death or great bodily harm at the hands of a man who had threatened to “beat the life out of him,” and may well have saved his wife and children also.
Real life is rarely as starkly black and white as in a Charles Bronson Death Wish movie. I want to commend Brian Abraham for an outstanding piece of trial advocacy, and extend my best wishes for the healing of the families on both sides of this unfortunate incident.
By Massad Ayoob

Read More Ayoob Files Articles

Handgunner Sept/Oct 13


Order Your Printed Copy Of The American Handgunner Sept/Oct 2013 Today!


Download A PDF Of The American Handgunner Sept/Oct 2013 Issue Now!

Gunman In The Courtroom:

The Judge Harry Peetris Incident

Situation: The defendant pulls a gun and takes the entire courtroom
hostage — but there is one judge who has more than a gavel with which
to enforce his authority.

Lesson: Lawbreakers, by definition, do not obey laws. When they violate
them and threaten the lives of the innocent, lawful force is required to bring things under control. Competence creates confidence, and vice versa. And from the tactical side, we need to remember gunpoint situations can last longer
than shooting matches.

Security at courthouses is rigid. It has to be. Courts are filled with emotionally charged people who are going through some of the worst experiences life has to offer. Some of those who come to court are filled with everything from total despair to a lust for revenge.

Many a judge has been the recipient of death threats. It’s no secret — at least in the justice community — many of them wear guns under their signature black robes. Some judges have had to clear blue steel from beneath those black robes to protect the lives of themselves and others.

Now, meet a judge who once had to do exactly that.

Prelude

On August 29, 1962, Judge Harry Peetris was presiding over Division 67, an arraignment court on the first floor of a Los Angeles courthouse. He carried a gun, wearing it under his robes in court. Then and now, even in jurisdictions like L.A., where it’s extremely difficult for ordinary people to get a license to carry, exceptions are routinely made for attorneys in general and judges in particular. It was known to the other judges Peetris not only carried, but shot regularly every couple of weeks at the LAPD range — where he consistently tallied perfect scores with his preferred revolver, a 4″ Colt.

At that time, and even now, armed bailiffs were stationed in the courtrooms, but there were never enough of them to keep an eye on everyone. Judge Peetris recently told me, back in those days, the bailiffs in the municipal court were Los Angeles County Marshals, while Superior Court employed Los Angeles County Deputy Sheriffs. Security was a big concern for the folks in the black robes and part of their security plan included notifying Judge Peetris in the event a courtroom faced an armed threat.

The Incident

Judge Peetris had a full courtroom on the day of the incident, and had been in session only 40 minutes when he noticed his court clerk had received a telephone call and gave him a troubled look. Sensing a disturbance, Peetris covered his microphone and motioned her up to the bench where she proceeded to tell him a gunman had taken over a neighboring courtroom, holding Judge Donald Redwine and a room full of people hostage.

The judge motioned to his own bailiff, Marshal Shelly Wagner, to approach the bench and briefed him quickly, telling him to take the front door while the judge would get the back door. After admonishing everyone to remain seated, the two split up, with Peetris running out the back door toward Judge Redwine’s second-floor courtroom.

Upon reaching the back door to the courtroom, Judge Peetris opened it carefully and quietly. A strange tableau awaited him.
A full jury box, sitting still. Judge Redwine, motionless at the bench. A uniformed police officer, sitting stock-still in the witness box. And a full courtroom of spectators, likewise silently rooted in place.

And, striding angrily back-and-forth in the well of the courtroom, stood John Burrows, a stocky clean-shaven Caucasian, about six feet tall, wearing white coveralls. In his hand was a black semiautomatic pistol.

tris threw open his robe to clear his snubnosed Smith & Wesson .38 Chief Special from its open-top leather holster on his belt. Going to the familiar standing barricade position from which he had shot PPC so many times, Peetris said in command voice, “Drop your gun!”
John Burrows, the man with the pistol, faced him for a moment. He waved his gun, but didn’t aim it at the judge or anyone else. Instead he shouted back, “Shoot me! Go ahead and shoot me!”

It had instantly turned into a potentially lethal standoff.

On Eggshells

Peetris could see his bailiff, Wagner, posted opposite of him at the edge of the main doorway to the courtroom. Wagner’s service revolver, a 4″ S&W .38, was on the gunman. The packed courtroom offered a target-rich environment for the offender if he started shooting. Contrarily, this was an innocent bystander-rich shooting backdrop for Peetris and Wagner — obviously complicating the matter greatly.

In the following moments, Peetris began to understand why no one in the room was moving. It was obvious the man with the gun was a raving lunatic, who continuously screamed allegations he had not been speeding and the police officer was lying. In essence, he had drawn a gun over a speeding ticket. It was apparent to everyone in the room the gunman was irrational, and none of them wanted to push him over the edge.

The cop on the stand, a motorcycle officer, was in uniform wearing his service revolver in a flap holster that hung at his thigh on a swivel. It would have taken too many movements to open the flap, draw the weapon and bring it on target without catching Burrows’ attention thus inviting him to open fire. Realizing the jurors would all be directly behind him if he traded shots with Burrows, the motor officer made the conscious decision not to go for his own gun.

At one point during the standoff, Peetris remembers silently urging Judge Redwine to drop to the foot-well of the bench for his own safety. Redwine waved him off, later saying while he could have easily removed himself from danger, he didn’t want to spook the ranting madman any further. With Redwine still a visible target Peetris knew he would have no choice but to open fire if the man pointed his gun at the judge.
As the gunman paced the courtroom and shouted mindlessly, the court reporter documented every word on her steno machine. The wife of an LAPD officer, she kept a low profile and calmly documented every word spoken in the courtroom — which later became valuable evidence.

The manically pacing Burrows continually walked between Judge Peetris and Marshal Wagner, forcing both men to elevate their muzzles to avoid crossing each other.

Judge Peetris realized his snubnosed revolver, in a packed courtroom with many observers in the seats between him and Burrows, posed a tremendous danger to onlookers. He was grateful for having the foresight to load his .38 with hollowpoints long before they were allowed by LAPD. In the event of a sudden escalation requiring Peetris to shoot, hollowpoints were much less likely to overpenetrate and strike a bystander.

Early in the standoff, the judge made the conscious decision to cock the hammer of his little Chief Special. This was a man capable of shooting a perfect 300 out of 300 on the LAPD qualification exam, all double action and while overcoming the short sight radius of the snubnose .38. But Peetris recognized a 12-pound double-action trigger press on a 19-ounce revolver could pull the muzzle off-target if he had to fire reactively in an instant.

Even then, shooters were taught not to cock the hammer of a revolver in a gunpoint situation because it increased the risk of an unintentional stress-induced discharge if one was startled. But, as a law school graduate, he also understood the Doctrine of Competing Harms, the principle which holds one is allowed to break the rules or even the law in the rare circumstance where following the law would cause more danger to human life than breaking it.

Acutely aware of this delicate balance of dangers, Judge Peetris allowed his index finger to lightly rest on the trigger as he tracked the situation across his sights. Initially holding for the chest, he took time to analyze Burrows’ anatomy vis-à-vis the positions of the people behind him, and decided the upper abdomen would be a more solid target with less likelihood of even a mushrooming hollowpoint exiting. Accordingly, he lowered his point-of- aim to that part of Burrows’ body.

Endgame

The incident received an unexpected twist in the form of Burrows’ concerned boss, who arrived to the courthouse earlier that day in support of his employee. He hadn’t been in the courtroom when Burrows pulled the gun, but once he learned what happened, he made his way to what was now a hostage situation. Bailiff Wagner, holding the fort at the main entryway to the courtroom, called out to Judge Peetris, asking him if the boss would be able to enter to speak to Burrows.

It was a difficult decision for Peetris. Normally, people in the hostage-taker’s life aren’t allowed into the hostage negotiation, because it is impossible to predict whether their presence will help or hurt. In this case, instinct told Peetris it would more likely do good and invited the boss in. A large man in a dark suit entered the courtroom. The gunman yelled at his boss to stay back — and at that moment Peetris must have questioned his own decision — but after that outburst, the gunman calmed down.

At this point, Peetris remembers feeling something at his knee and looked down to see a gun pointed at the defendant with the man wielding it identifying himself to the Judge as Captain Pete Hagen. It turns out Hagen was in charge of the Southwest Division of the LAPD, located one block from the courthouse.

There were now three drawn guns on Burrows, but he seemed to no longer be aware of them. Instead, he was listening to his supervisor. As he approached the low swinging gate separating the courtroom well from the spectators’ gallery, he soothingly urged Burrows to calm down and hand him the gun.

And then, John Burrows simply reached over the short wooden gate and handed the pistol to his boss.
Peetris and Captain Hagen moved in from their position, and bailiff Wagner from his, all with their guns on Burrows. The motor officer approached from the witness stand to assist in apprehending the suspect. In moments, Burrows was handcuffed and the officers began searching his person. Captain Hagen took the semiautomatic pistol from the gunman’s supervisor, removing a fully-loaded magazine and clearing a live cartridge from the chamber. Hagen then searched the handcuffed Burrows, finding two more fully-loaded magazines.

Judge Harry Peetris carefully lowered the hammer of his Smith & Wesson and returned it to its holster inside his robes.
The jurors in the jury box stood up as one, spontaneously applauding the men who had ended their terror.

It was over.

Review of the transcript recorded by the unflappable court reporter indicates the encounter lasted between 22 and 23 minutes. John Burrows was later found to be mentally incompetent to stand trial, and was committed to a California institution for the insane.

Lessons

In the country of the blind, the 1-eyed man is king. Likewise, a single criminal with a lethal weapon can dominate a great many unarmed helpless people at once. But when the armed criminal realizes he is under the gun and will likely die the moment he pulls the trigger, his interest in self-preservation is suddenly more important. It’s clear the perpetrator in this case realized Judge Peetris had a gun on him, who would be more than capable of “dropping the hammer” on him if he pulled his own trigger or even took aim at someone in the courtroom. Soon after, the bailiff and the police captain also had guns leveled, and Burrows had to realize three good guys with guns are better than one. This is the most likely explanation of why the situation did not escalate, and why the perpetrator ultimately surrendered.

Taking dangerous criminals at gunpoint is a far more common occurrence than actually having to shoot them. A study conducted by the California Attorney General’s Office not long after the Peetris incident proved this to be true of armed citizens who took criminal suspects at gunpoint. Later studies by professors at respected universities have also validated this finding.

I have been an LE course instructor for over 40 years, and in the classes I teach, I routinely ask those in the attendance to raise their hands if they had lost count of the number of people they’ve shot in the line of duty. In many years of asking, no hands have ever been raised. When I follow-up and ask if anyone had lost count of how many suspects they’d taken at gunpoint, a forest of police officers’ arms will rise — particularly if the class takes place in a high-crime area.

Most gunpoint situations last little more than seconds. Judge Peetris’ incident lasted more than 20 minutes. Let’s take a moment to look at this often-neglected element of armed-encounter tactics.

When you have a death grip on your gun and are holding it on target at arm’s length, you’re using muscles unaccustomed to doing so for long periods of time. Cramping, pain and tremors can set in. The ability to vary stances proves useful during such long, drawn-out situations. Adjusting from an isometric Weaver stance to a skeletal support-intensive isosceles position allows tired muscles a break from their unnatural “push-pull” position. Switching from Isosceles back to Weaver lets the muscles bear the brunt of the effort, and allows painfully weary joints to rest and recuperate. Even changing hands may become necessary when cramping and tremors set in.

Judge Peetris told me during this incident, he was indeed aware of muscle fatigue and cramping effects. What got him through it, he said, was the fact he had spent a great deal of time shooting left-handed from the left side of a barricade and right-handed from the right side. It also helped he was fairly young and in good shape. All of this prepared him for the long ordeal in Judge Redwine’s courtroom. The stance he used was the old FBI barricade position, with his support hand palm-flat against the wall and his thumb protruding parallel to the floor, creating a “rest” for the wrist of the gun hand.

Triggers

More than 50 years after the incident, studies of human error have continued to show us cocked guns with fingers on triggers are not a good idea, and guns with a light trigger press are almost universally frowned upon for threat management. However, at the time of this incident, this was not the common practice. Well into the 1980s, police training manuals depicted officers with their fingers on the trigger during gunpoint situations — even through the course of the draw. Many police duty holsters back in 1962 left the triggers exposed, and the “clamshell” holster popular among LAPD officers at the time actually required the finger to be inserted into the triggerguard to release the firearm. In any case, thanks to an experienced shooter’s finger on the trigger, this incident ended well.

Judge Peetris told me while the standoff was happening, he “went cold,” something he had learned to do in harrowing situations during his FBI days. His focus on the task and his perception of what he needed to do and watch for, allowed him to push out fear. This seems to be a nearly universal agreement among today’s teachers going in harm’s way.

Now well into his 90s, retired Judge Harry Peetris remains an armed citizen, a gun enthusiast and a man who continues to practice on the range. He leaves a considerable legacy: A half-century on the bench and a career marked by a deep understanding of both human values and human nature as they relate to the laws of man and society. I hope he writes his autobiography one day, and on behalf of American Handgunner, I would like to thank him for sharing his story with our readers.
By Massad Ayoob

Read More The Ayoob File Articles

Order Your Copy Of The American Handgunner July/August 2013 Issue Today!

The Armed Citizens Of Newhall

Situation:

Four Highway Patrolmen lie dead or dying, the cop-killers are still up and running … and you are there to face them.

Lesson:

Having your own gun is generally better than having to use someone else’s … and courage, determination, and skill will be more important than what kind of gun you have.


Many years ago, in an early segment of this continuing series, we touched on the April 5, 1970 gunfight in Newhall, Calif. that took the lives of four young California Highway Patrolmen. We touched on it again here more recently to highlight new information uncovered by Mike Wood for his new book on the incident.

One of the most famous gunfights of the 20th century, this shooting basically kick-started the officer survival training movement as we know it today. However, almost 43 years later, some of our readers were surprised to learn that before the terrible night was over, two armed citizens would exchange shots with the cop-killers. They wrote in to ask for more details on that side of it.

At the Scene: Gary Kness

When Gary Dean Kness drove past the complex of J’s Restaurant and the Standard gas station on his way to work, he “came in at the middle of the picture.” In fact, as he saw the gunfire lance between the tan-uniformed cops and the men at the red car stopped in front of their black and white patrol units, Kness thought at first that someone was filming a movie or a TV show. But then, he saw one of the patrolmen slump onto the trunk of a patrol car, and slide to the ground, and the reality of it became starkly apparent.

At that moment, Gary Kness could not have known what had happened immediately prior. A few minutes before midnight, CHP officers Roger Gore and Walter Frago had pulled into the complex behind a red ‘64 Pontiac fitting the description of a car in which a lone driver had brandished a snubnosed revolver at a couple in a Volkswagen a short time earlier. Frago, riding shotgun, had unlimbered the issue Remington 870 from its dashboard rack and taken a position at the right front of the black and white, while Gore had emerged from the driver’s seat and drawn his privately owned, department approved 6″ Colt Python and, from cover behind the fender, ordered what they now saw to be two suspects out of the car. The suspects did not move. When the repeated commands proved fruitless, Gore approached their vehicle, and Frago followed.

Bobby Davis, 27, emerged from behind the steering wheel, now apparently compliant. Frago, his shotgun muzzle up with the butt on his hip, approached the passenger door. But Jack Twining, 35, spun in the right front seat and came up with a 4″ Smith & Wesson .357 Magnum revolver — ironically, the Highway Patrolman model — and rapidly shot Frago twice in the chest, instantly and fatally dropping the young officer.

On the other side of the Pontiac, Gore — who had been the top shot in his academy class — reacted instantly, firing at Twining but missing. Twining in turn pumped two .357 rounds at Gore, both of which hit the Pontiac instead of the policeman. But Gore’s attention had been diverted from Davis, who surreptitiously drew the revolver he had brandished at the other motorists earlier and shot Gore twice in the chest. The .38 slugs, fired from a Smith & Wesson Bodyguard, are believed to have killed Gore instantly.

As this was happening, the first CHP backup unit pulled into the scene, Officer James Pence driving and Officer George Alleyn on the shotgun side. After a quick radio call for assistance, they exited the vehicle, Pence with another 6″ Python and Alleyn with the patrol car 870. In the blazing gun battle that followed, the perpetrators emptied both of their revolvers. Twining seized one of two 1911 .45s in the back seat of the Pontiac and got off one shot before it jammed. He dumped it back in the car and grabbed the other .45, while Davis grabbed a sawed-off 12-gauge Western Field (re-branded Mossberg produced for the Montgomery Ward chain) pump shotgun.

Officer Alleyn emptied the Remington, one live shell inadvertently lost on the ground and the other three rounds of double-ought buck blasted toward the Pontiac. One .33-caliber pellet, slowed by rear window glass, created a painful and bloody but superficial wound on Twining’s forehead, which only served to enrage him, and another barely dinged the nose of Davis. Dropping the empty shotgun, Alleyn drew his 6″ S&W Model 19 and sent three .357 rounds in the cop-killers’ direction, without effect. The bad guys were actively shooting, too, and moving. Pence, crouching behind the other patrol car, had emptied his Colt fruitlessly, and had been hit by three of Twining’s bullets, twice in the legs and once in the torso. He was down on his knees now, trying desperately to reload from dump pouches.

Alleyn, the last cop standing, was then hit in the face and chest by 10 double-ought pellets from Davis’ sawed-off. He convulsively triggered a .357 slug through the back of his own patrol car as he slumped down onto the trunk, and slid off the side to the ground, exposed and vulnerable to the killers’ continued gunfire.

It was this that Gary Kness saw as he pulled over, jumped from his car, and entered the fight.

Citizen Fights Back

Alleyn, down behind the right rear of the CHP car, was the closest officer to Kness, and the 31-year-old former Marine sprinted to him, covering an estimated 70 yards. His first instinct was to pull the downed lawman into the safety of cover, but when he grabbed the Sam Browne belt and tugged, he felt only dead weight, and could not move him. Realizing that one of the gunmen was moving in on his position (Bobby Davis, now armed with the Colt .38 he had taken from the corpse of Officer Frago), Kness knew only one option remained: shoot back!

Kness scooped up the Remington 870 from the ground, leveled at the gunman who was rapidly approaching, and pressed the trigger. Click. He would remember forever after the sick feeling that came over him when he heard that sound. Kness racked the action and pressed the trigger once more. Click. The feeling of helplessness deepened.

However, his actions created some doubt on the bad guy’s side, too. Researcher and author Mike Wood writes, “At the sight of Mr. Kness aiming the shotgun at him, Davis abandoned his advance and immediately retreated back to the front of the Pontiac. However, once it became apparent that the shotgun was empty, Davis began another advance on Mr. Kness and Officer Alleyn, continuing to fire the .38-caliber revolver he had taken from Officer Frago.”

Kness looked down, saw the 6″ Model 19 and snatched it up. He “got it in two hand combat, elbows on the trunk, and cranked one off,” Kness would say later. “I knew I had him. He spun around. I cocked it and then it went click.” For the third time in four trigger pulls, the guns he had picked up had failed to fire.

At that moment, he heard a deafening gunshot off to the side. It sounded “like a howitzer,” he would say later, but it was the .45 going off in Twining’s hand. Twining had seen Pence down behind the other car reloading, rushed him before he could close the cylinder, and shouted “Got you now (expletive deleted)” as he pumped an execution shot into the helpless Pence’s brain.

Kness’ one shot had apparently hit his antagonist, causing the gunman to spin away and break off his attack. Kness had no reason to believe he could continue the fight with empty guns. He turned to his right and sprinted to the cover of a deep ditch.

At that point the third CHP car pulled in, containing Highway Patrolmen Richard Robinson and Ed Holmes. Kness saw the barrel of a shotgun already protruding out the patrol car window, and realized that he was covered with blood and still holding a revolver. Even though he believed it was empty, he knew there was no way the officer could know that. He held the gun down by his thigh out of sight, so he wouldn’t be shot, and told the officers, “They went that way!” Moments later, shots were exchanged again — one of the officers is believed to have hit the fleeing Pontiac containing the two cop-killers, and one of the gunmen’s bullets was subsequently found to have struck the third patrol car.

Not until later was it learned that there was still one more live cartridge in Alleyn’s Smith & Wesson. Apparently at some point in the fight, the officer either short-stroked the gun double action causing the chamber to cycle without being fired, or he cocked the gun and then lowered the hammer. Of course, there had been no way for Kness to know this, in the dark and in circumstances too fast-breaking to open the cylinder and examine the case heads.

Along The Escape Path

The killers fled into the night, each bleeding from minor wounds. Twining had the forehead injury from Alleyn’s buckshot pellet. Davis, in addition to having been dinged on the nose by a pellet graze, had been hit by Kness’ single shot. It had struck one of the vehicles en route to its intended target, breaking up, but at least part of the bullet had gone where the courageous citizen intended, scoring an inch-wide peripheral wound in Davis’ armpit area. It had been enough to make Davis spin away and run in the other direction, breaking off his murderous assault.

The fugitives abandoned the shot-up Pontiac, separated, and each continued alone on foot. Twining had run all his own guns dry, and plundered weapons from the downed officers who had fallen near his Pontiac. Armed with Officer Gore’s Python and its remaining ammunition, and with the Remington 870 of Officer Frago, he made his way to a local home, where he held the family hostage. When Los Angeles County Sheriff’s Department personnel surrounded the building, Twining released the hostages and, as the police made entry, blew his own brains out with the CHP shotgun.

Davis, wandering in the dark on a remote road, came upon a small truck mounting a camper shell. Asleep inside was the owner, one Daniel Schwartz. Mike Wood, whose exemplary research in his new book represents a new high water mark for published information on this incident, tells what happened next:

“Davis encountered Daniel Joseph Schwartz during his escape and fired a single shot at him while Mr. Schwartz was inside the camper shell on his 1963 International Scout pickup. Mr. Schwartz blindly returned gunfire through the door of the camper with his Enfield No. 2 Mk I* revolver, chambered for the relatively impotent .38/200 (or .38 S&W) cartridge. One of his three bullets struck Davis and slightly wounded him, according to the CHP. The weak bullets didn’t have much energy after penetrating the camper, which is why Davis was not more seriously wounded. After Davis threatened to burn him out, Mr. Schwartz exited the vehicle and fired his remaining three rounds at Davis (perhaps wounding him again — Davis had an armpit wound and a wound to the right neck/collarbone area) whereupon Davis clubbed him with the now empty revolver that he had stolen from the dead Officer Frago. Having savagely beaten Mr. Schwartz, Davis escaped in the truck, only to be captured by Los Angeles County Sheriff’s Deputies Fred Thatcher and Don Yates at a roadblock along San Francisquito Canyon Road around 0415 on 6 April 1970.”

Lessons

Gary Kness, now well into his seventies, is thankfully still with us at this writing. He has, for generations, been a hero among the members of the California Highway Patrol. Having received much official recognition for his valor, he remains modest about his actions that terrible night. “Somebody needed help,” Kness said quietly, many years later. “When I saw the officer fall out into the street, I could see he was still taking fire … he needed help.”

In 2008, when a portion of Interstate 5 was renamed in honor of the four fallen Highway Patrolmen, Gary Kness was present. Los Angeles Times reporter Bob Pool captured this telling vignette: “… Kness was hugged by Alleyn’s relatives. A long line of CHP officers and other law enforcement authorities formed to shake his hand. ‘I’ve always heard of you. I’ve wanted to meet you all my life,’ said retired San Fernando Police Officer Fred Iverson.”

Given the situation he had to work with, it’s hard to imagine how Kness could have done anything better than he did. His initial aggressive response with the shotgun drove back a charging gunman. When he appeared to be helpless, Davis came at him again, firing the stolen .38 … until Kness nailed him with a bullet, at which point the cop-killer turned and fled, abjuring from the conflict.

Kness maintained a constant awareness of what was around him. Long after, he told an interviewer that his Marine training had come back to him in that long and terrible moment of need during the gunfight. “Check your six, see what’s going on around you,” Kness explained. He was able to pick up on Twining — on his flank, murdering Pence and about to murder him. He could hear a vehicle coming in toward the scene, which he correctly presumed to be cavalry riding to the rescue, the third patrol car containing Holmes and Robinson. Taking these factors together, along with the reasonable belief he no longer had anything with which to shoot back, his final retreat to the safety of the ditch appears to have been the logical strategy.

So does his decision to carefully aim and fire. Acutely aware the last two times he had pulled a trigger nothing had happened, Kness carefully cocked Alleyn’s blood-spattered revolver and squeezed off a shot, hitting his target and stopping the violent attack.

In 1970, when this happened — as now — residents of southern California had little hope of getting a license to carry a gun, or even keep a loaded gun in their car, unless they are a judge, politician or wealthy celebrity. We’ve seen how powerfully Gary Kness handled himself with picked-up guns and a single live cartridge. Suppose he could have been carrying the same 1911A1 .45 of his beloved Marine Corps, the same gun the murderer Twining used to deadly effect. Might that have changed things? Might that not, in the hands of a man like Gary Kness, have very likely put the two criminals on the ground right then, right there?

What of Daniel Schwartz? Probably woken from deep sleep, he had little time in which to react or to consider the situation. Some would question his firing blindly through the door (what if that intruder had been holding a hostage?), but under the circumstances it’s hard to fault him for doing so. This bullet, as Mike Wood has already noted, was a feeble one, and it inflicted minor injury in the upper chest/collarbone area. Tim Mullin wrote in The 100 Greatest Combat Pistols (Paladin Press, 1994), “The problem with this pistol, of course, is the load: .38-caliber, 178-grain, full metal jacketed loads at 650-odd fps simply are not reliable manstoppers. Throughout World War II, this was the major complaint about the Enfield. That is only reasonable when you consider that these loads are slightly less powerful than .380 automatic loads.” He’s describing the British military load that followed the original .38/200, a blunt-nosed 200-grain bullet at about 600 foot-seconds.

By 1970, tons of these war surplus Enfields had been sold in the US, at prices of $19.95 or less. The ammo generally available for them here is what was most likely in Schwartz’s gun: .38 S&W, comprising a roundnose lead bullet weighing 146 grains loaded to a velocity of 730 fps. Mr. Schwartz’sEnfield was one of those whose barrel was shortened to 2″, the power level reduced that much more. The evidence photo of Schwartz’s revolver shows that it had no front sight.

Why did the final three shots fired by Schwartz miss entirely? It is unclear from anything I can find. The darkness of the night, perhaps? Would a flashlight in the other hand have helped Schwartz to see Davis well enough to hit him once the camper shell door was open? We’ll never know for sure.

The shot Davis fired at Schwartz, fortunately to no effect, was the last one in the gun. It was a .38 Special Super Vel. Frago, alone among the CHP men who were killed, was carrying a .38 Special revolver instead of a .357 Magnum: a Colt Officers Model Match with 6″ heavy barrel. That gun, snatched from the corpse of the one of the four slain men who never had a chance to shoot back, weighed 39 ounces empty. When Davis was savagely pistol-whipping him with it, Schwartz might have had occasion to ponder the wisdom of Robert Ruark’s advice, “Use enough gun.” A bullet from one of those would likely have gone through the camper door with enough power to deliver much more than a superficial wound when hitting the upper chest area. Yes, a .357 Magnum or a .45 would have been painfully loud when fired inside a camper shell, but it would probably make one’s ears ring less than being bludgeoned about the head with a two and a half-pound gun.

Perhaps the final lesson is that cops aren’t the only ones who can shoot back at the most dangerous criminals our society breeds. There are many lessons to be found in Newhall Shooting: A Tactical Analysis by Mike Wood, available from the Amazon Kindle Store and on the Gun Digest Books website. I believe it is by far the most thorough treatment of this incident yet put in print.

Author’s note: The Wood book dispels some long-standing myths about this incident, discussed in these pages in 2012. One of the murderers’ names is often spelled “Twinning,” though Wood believes “Twining” is the correct spelling. Mr. Kness’s name is pronounced with the “K” silent, and some, including me, have phonetically misspelled it “Ness” incorrectly, in the past.
By Massad Ayoob

AH MK 2013

Order Your Copy Of The American Handgunner May/June 2013 Issue Today!

Read More Ayoob Files

Dueling Rifles: The Brent Smith Incident

Situation:

A man ready to die wants to take some other people with him. He opens fire on his girlfriend — and the police — with a high-powered rifle.

Lesson:

When the bad guy has a rifle, it’s a good idea for you to have one too … the aftermath may be different from what you expect … and modern tools for containing fast-moving gunmen go beyond the gun.


Sunday afternoon, Nov. 9, 2008 in Mequon, Wis. A woman walks into Mequon Police headquarters to report a frightening incident.

It’s her live-in boyfriend, Ryan Carey, she explains. He has problems with drugs and alcohol and behavior control. The situation has been escalating, and she has become so scared of him she has dropped her kids off with her estranged husband. Today, she asked him to leave the house. He refused, and things became uglier. She went for the phone to call the police, and he physically attacked her. She shows the shift sergeant where she has been punched, bitten, and kicked.

And then, she says, he went into the bedroom. She saw him loading some kind of a long gun. She ran from the house and jumped into her car. As she drove away from her own home in terror, he emerged from the house, firing. He shot at her twice.

A quiet Sunday afternoon in Mequon — population about 24,000, with a police department of 3-dozen sworn officers and a dozen non-sworn employees — will be quiet no more.

Officers Respond

Four 1-officer patrol cars are dispatched to the location. The responding officers are Jason Moertl, Corey Polishinski, Mandie Rudolph and Brent Smith. Smith, whose patrol has just taken him past the subdivision where the shooting occurred, is the closest of the four. When he hears a call signal coming out to him and three other squad cars simultaneously, the first thought in his mind is, “This can’t be good.”

Dispatch says over the radio, “A subject came into the lobby and reports she had been involved in an argument with another resident of the house who shot at her when she drove away.” Smith reaches over and unlocks the issue patrol rifle, a Colt AR-15 A3, and sets it on his squad bag in the front seat for faster access. Then, he reaches for the microphone.

Talking car to car, he and the other responding Mequon officers quickly plot their strategy. They will stage at the entrance to the subdivision, and plan their approach. Officer Moertl has a map book in his car. It seems to show the target address at the West end of the subdivision.

Moertl and Polishinski, it is quickly agreed, will approach from the south side of the subdivision, while Rudolph and Smith will come in from the north. All four squad cars roll out, with Rudolph’s ahead of Smith’s on the northern approach.

Ambush!

Rudolph and Smith in separate patrol cars are nearing the turn that will take them into the west side of the subdivision when they find out the danger is not exactly where the map appeared to show it. Brent Smith hears the blast of a high-powered weapon, and what sounds like something striking metal, and instantly knows he and his sister officer are under fire.

Everything starts to go into slow motion for Officer Smith. He pulls over quickly, slamming the gearshift into park before the patrol car has stopped moving, and grabs his AR-15, charging a round into the chamber as he bails from the vehicle. He sees a muzzle flash — though he does not hear the gunshot — and from the angle of the flash realizes he’s being fired at from behind a corner of a nearby house. He sprints toward what appears to be the closest cover — the other side of the same house.

The ambusher shoots at him again … and misses. Smith gains the cover of the other side of the house, and begins moving to the rear to outflank his deadly attacker.

He broadcasts over his radio that have been fired, and gives the location.

As Smith does so, gunman Ryan Carey turns his attention to another target, the female officer in the lead patrol car, who has also come to a stop after hearing the shot. She twists in the driver’s seat to reach for her own AR-15 in its rack when a powerful 7.62x54mm Russian bullet — roughly the equivalent of an American .30-06 — crashes through the rear doorpost and window of her driver’s door, passing through the passenger compartment. Had she still been in the upright driving position behind the steering wheel, it would have gone squarely through her brain. Instead, her movement in reaching for her patrol rifle has pulled her barely inches out of the bullet’s lethal path.

Mandie Rudolph pulls her car forward more, then exits the vehicle, rifle in hand and running toward the danger. Behind the house, sprinting himself, Brent Smith hears her report on the radio that gunfire has struck her police vehicle. And, he knows, Officers Moertl and Polishinski are racing toward the scene to assist.

It’s a big house, and a long way to run, and things are happening fast. What Smith, on the opposite side of the building, cannot know at this point is Ryan Carey has emptied his bolt-action Mosin-Nagant rifle. The would-be cop-killer has run inside the building, dumped the empty Mosin, and grabbed another gun, a WWII-era bolt-action Yugoslavian carbine. It is fully loaded. He emerges, hunting for new targets.
As he does so, Officer Brent Smith has cleared the corner at the rear of the building. Approaching that corner, he has been concerned the ambusher might be there waiting for him, and has visualized himself jamming the muzzle of his patrol rifle into the man’s sternum.

But instead, what he sees is down the side of the building, 50 feet away, is a man moving from the garage in front of the house, holding a long gun with a wooden stock. The man appears to move toward Smith, then suddenly pivots back toward the street, as if to shoot at a target there.
The man with the gun is turning it toward the position where Smith last observed Officer Mandie Rudolph, whom he knows this gunman has already shot at once. There is only one thing left that can be done to stop him.

End-Game

Brent Smith raises his AR-15, looks through the large rear aperture and puts the post front sight center on the gunman’s torso, bringing the trigger straight back. It seems to take forever for the rifle to fire, and when it does, Ryan Carey jerks his shoulders as if in an exaggerated shrugging movement, and totters a couple of steps back. Smith, seeing his target still up and running and armed, fires a second shot, and a third. After some five steps, Carey collapses. Smith sees him fall out of sight between two cars in the driveway.

Smith moves cautiously forward, rifle still up, cognizant the man who has fallen may not be the only threat present. He hears Rudolph ask him over the radio if he’s okay. Smith responds he is, and the suspect is now down and out of sight in the driveway. He broadcasts a request for a rescue unit, advising they stage out of range until the danger scene has been cleared. Smith sees Officer Polishinski enter the yard, and together they approach the downed suspect. The gunman is lying still, supine, his rifle still in hand. Smith reaches down and pulls the weapon from the man’s limp grasp. By now, the other two officers are there, too.

The suspect is handcuffed and searched. The downed man is unresponsive, and two of the officers begin cardio-pulmonary resuscitation. One of those officers is Jason Moertl. The other is Mandie Rudolph, trying to save the man who moments before came within inches of blowing her brains out.

Smith knows his patrol rifle has become evidence. It’s already on safe. Now, he begins to unload it. He removes the magazine, and then realizes he has become so clumsy he can’t clear the chamber. He turns the Colt AR over to Officer Corey Polishinski, who extracts the chambered round, and retrieves it as evidence.

Sergeant Wolfgang Gieske has arrived and takes command of the scene, making sure his people are all right and giving his Automatic Electronic Defibrillator to Officers Rudolph and Moertl, who are still working feverishly to try to save the gunman’s life. Firefighter paramedics arrive simultaneously. One of them asks, “Where’s the victim?”

“Don’t call him that! Your patient is over there,” snaps the wise sergeant, who knows the difference.

Short-Term Aftermath

Ryan Carey did not survive. He was hit by a single round, almost certainly the first one Smith fired. Stumbling back from the hit apparently moved him out of the path of Smith’s next two shots. The bullet had entered the right of the gunman’s rib cage, blasting the liver apart and lacerating the diaphragm before it lodged, mushroomed, in the opposite side of the chest wall. The Federal 55-gr. softnose had performed exactly as designed, and had shed only three grains of its mass.

Ozaukee County District Attorney Sandy Williams delivered a memorandum of closure on the case on November 21. Noting that Ryan Carey had tried to shoot three people, including two police officers, before Smith’s bullet put him down, the report stated, “Ryan Carey was shooting into an open area within the neighborhood and there were numerous residents present in their homes, as well as when he first began shooting there was even a child outside in the yard by the location of Ryan Carey. Had Officer Smith not fired his firearm stopping Ryan Carey, Ryan Carey would have continued shooting and continued to put numerous people at risk of death and/or grave bodily harm. Officer Smith needed to fire his firearm to terminate Ryan Carey’s actions for the protection of his fellow law enforcement officers who were at the scene, specifically, Officers Rudolph, Polishinski and Moertl. His actions are also justified in the protection of the other neighbors within their residences.”

The memorandum concluded, “An individual has the right and it is legally justified to use lethal force if it is to protect the life of others. These events of Nov. 9, 2008 rose to the level of Officer Brent Smith being justified in killing Ryan Carey. These findings by no means diminish the tragedy of Ryan Carey being deceased; his behavior and actions of November 9th was the catalyst for why Officer Brent Smith needed to take the action he did.”

The family of the deceased was at first concerned that excessive force might have been used on their loved one. At least one family member asked why police couldn’t have just wounded him. Mequon police officials gently explained the reality of the situation, and shared the investigative file with them. There were no further complaints from the family, and no lawsuit was ever filed.

The issue patrol rifle used in the shooting was, of course, taken in evidence. So was Officer Smith’s department issue Glock 22 pistol, along with all 46 rounds of Federal Hydra-Shok .40 ammunition on his person that were in the gun and his two spare magazines. This is routinely done to allow for a complete investigation which rules out any other guns at the scene having been fired. Mequon PD policy wisely provided the officer be furnished with a replacement gun as soon as his duty weapon was taken, and this of course was done. History shows without this step, disarming the officer after a line-of-duty shooting is perceived as an unnecessarily punitive act.

Brent Smith phoned his wife Mary at the first opportunity, to explain what had happened. When he got home, he was met with a big hug and comforting support. The next day, when they brought their 7- and 9-year-old kids to school, they sat down with the prinicipal to make sure the children weren’t harassed by schoolmates who might have heard of the shooting on the news. A trip to church and a conversation with their pastor proved reassuring, too.

The investigation continued. On Brent’s end, the detectives from the Bureau of Criminal Investigation were very professional, but it was still an identity crisis for a cop to be interrogated in the death of a citizen, however much Brent knew the protocol was necessary. It produced a nagging sense of “Do they think we did something wrong?”

On the other end, investigators discovered Carey had spoken of suicide by gun, and had once said he was likely to die in a shootout with police. They learned in the days before the incident, he had been “putting his affairs in order” and looking up old, long-lost friends. It was classic “departure ritual” indicative of intent to commit suicide, but no one in Carey’s circle who noticed it recognized the syndrome or did anything about it. Most of the investigators came to believe Ryan’s death was “suicide by cop.” Apparently wanting to have company in death, or hoping to go out in a blaze of glory, he had fired deliberately at Officer Rudolph, and come terribly close to killing her.

Brent found himself slacking off on activity at work, and becoming irritable at home. He finally sought counseling, and was soon back on track in both environments.

Lessons

Studies show it is more likely than not that any of us will experience altered perceptions in an incident such as this. One of the most common is auditory exclusion: When he came under fire from a loud high-powered rifle, Brent saw the muzzle flashes but did not hear the gunshot reports after the first one. Tachypsychia, the sense of things going into slow motion, happens more often than not: Brent was consciously aware of that “slowdown” from the moment the first shot was fired, and though he was sprinting full-speed at points thereafter, he told American Handgunner he felt as if he was “moving through molasses.” As he fired, the shot sequence seemed to be happening in achingly slow motion; after the first discharge and his target’s body jerking in reaction, there was time for him to think, “Holy shit! You just killed this guy!” The next two shots seemed like slow fire to him, as well. Yet every other witness reported him firing a fast, uninterrupted volley of gunshots. The tachypsychia did not pass until the incident was over.

The patrol rifle was the right tool for the job, and it accomplished the necessary task. Brent was shooting with iron sights in imperfect light, just before sundown, yet he put the first shot exactly where he carefully aimed it from a distance of approximately 50 feet. Would a red-dot optic have allowed him to better track the moving target and hit him with the two follow-up shots? It’s a possibility, but we’ll never know for sure. As a direct result of this incident, Mequon Police patrol rifles were equipped with SureFire WeaponLight fore-end attachments, and with EOTech optical sights supplemented with backup iron sights.

Equipment analysis encompasses more than guns. The map the officers looked at left them with the wrong impression of where the house in question actually was, leading Rudolph and Smith to enter the danger zone sooner than expected, resulting in the near-lethal ambush. Mequon patrol cars at the time did not have air cards to allow officers to instantly download updated maps onto their onboard computers. Today, they do have that potentially life-saving capability.

Having to kill in the line of duty can take an emotional toll on even the most well-adjusted police officer. After Brent’s experience, he advises other cops to seek competent counseling sooner rather than later, as a proactive measure.

Brent Smith’s strongest take-away from the incident was his admiration for the courage, dedication, and professionalism of his peer officers, especially Mandie Rudolph. Her ears ringing from the murderous gunfire that had almost claimed her life, she had coolly broadcast her situation as she moved her squad car out of the line of fire, then grabbed her rifle and ran to the sound of the guns, and finally, tried to save the life of the man who had nearly killed her.

All four officers had courageously responded to deadly danger, and they had done their duty.
By Massad Ayoob

Get More Ayoob Files

AH MA 13

Order Your Copy Of The American Handgunner March/April 2013 Issue Today!

When The Young Must Use Deadly Force

Situation:

A violent criminal presents deadly danger to innocent children — and only a young person is in position to protect them … with a loaded handgun.

Lesson:

Having to shoot a human being can be a terribly traumatic act at any age … but not so traumatic as helplessly watching the murder of innocent loved ones.


In June of 2012, a defensive shooting in the Phoenix, Arizona area captured national attention. Reporter Sandra Haros of Phoenix News KTAR wrote:

“PHOENIX: Authorities say a teenager shot and wounded a suspect in a home invasion in Laveen, west of Phoenix. “Phoenix police said the 14-year-old boy heard someone trying to break into his home late Friday afternoon, instead of answering the door the teen went upstairs with his siblings who are 12, 10 and 8 years of age. The boy armed himself with a handgun.

“‘As he’s coming down the steps, a male suspect kicked in the door, entered the home with a handgun in his hand and pointed it toward the young man. At that point the young man fired his weapon at the suspect and the suspect went down,’ said Phoenix police officer James Holmes.

“The suspect has been taken to a hospital and police said he’s in critical condition.
“The name of the suspect and the teen haven’t been released yet.”

Most of us in the world of defensive firearms saw that incident as having a positive resolution. Some folks, of course, were horrified a 14-year-old was able to access a handgun and protect his three younger siblings from a violent adult who broke into their home with a gun in his hand. Perhaps they would rather have let the criminal have his way with helpless children. It can be a sad, weak world. Fortunately, it appears at this time, the police and the prosecutor’s office are treating the boy’s actions as what they obviously were: an act of heroism.

Other Cases

Editor Roy Huntington and I got to talking about the topic, and young people in armed, defensive situations, and he remembered an incident I wrote up in this space in the March/April 2003 issue. It’s the policy of both the magazine and the criminal justice system not to publish the names of juveniles who are forced to use guns in self-defense.

In that case, right at a decade ago, the shooter was 11 years old. His mother had fallen into the drug world and wound up in prison, and he had been adopted by his maternal grandparents. The man of the house, before he died, had taught the youngster to shoot. His widow and the boy lived alone, when a boyfriend of the incarcerated birth mother came to their house in South Bend, Ind. to steal the family’s gun collection.

Entering on a pretext, the hulking 28-year-old career criminal pulled a carpet-cutter and held it to the woman’s throat, threatening to kill her and the young boy if she didn’t give him everything. The kid ran to the master bedroom and retrieved the Llama 1911 pistol that reposed there, cocked and locked and fully loaded with Winchester 230-grain Black Talon .45 ACP hollowpoints. He raced back downstairs and confronted the deadly intruder in the Isosceles stance his late grandfather had taught him.

The intruder tried to swing his female hostage between himself and the boy as a human shield, but he was full of booze and drugs and misjudged the movement. He swung the woman past him instead of in front of him, leaving his side completely exposed to the boy.

As the old man had taught him, the boy carefully aligned the sights, wiped off the .45’s safety, and smoothly pressed the trigger straight back.

At the shot, the home invader’s thoughts apparently turned from murder to survival. He released the woman, ran to the door, and disappeared from view. When police arrived, they found the man dead 40 yards away in an alley. The child’s single careful shot had caught him high in the chest and torn its way side-to-side, coming to rest fully expanded in the opposite side of his rib cage. Along the way, the bullet had slashed through the would-be killer’s aorta.

The criminal justice system investigated, and understood. District Attorney Chris Toth told the press, “He did what he had to do. That’s an unfortunate burden for an 11-year-old to have on him … it’s a tragic situation. Even though this individual who got shot was attempting to rob the mother and her son, he’s still somebody’s son, and obviously this 11-year-old boy was placed in a situation no young person should ever have to face.”

The rescued woman was quoted as saying, “I don’t know how he did that. One shot and he got him. He’s my little hero.” She continued, “He’s proud of himself. He feels bad he took a human life. But he didn’t want to lose me. He lost his dad three years ago to a heart attack.”

When last heard from, the young man had been through counseling and was doing well. He’d be about 21 years old now. I hope he’s still okay.

I wrote in that Ayoob Files 10 years ago, “This was not the first time a child has had to use deadly force in defense of self and family.

A stalker entered the home of his ex and her new lover and shot them both, and the man’s older son. He in turn was shot and killed by the man’s 12-year-old son, with a Ruger Single Six .22 revolver the lad had permission to keep in his room. The youngest such defender I know of was a preschool boy in California who put his mother’s Raven .25 automatic to the head of the man who was attempting to beat her to death, and pulled the trigger, killing the attacker instantly and saving his mother’s life.

Also in California, there was a case of a maniac with a pitchfork who broke into a home and attacked the children who were there. A teenage older sister, unable to access her parents’ locked-up guns, jumped out a window and ran to a neighbor’s house, begging for a weapon. He refused to give her one, instead calling the police. When officers arrived, they were forced to shoot and smoothly pressed the trigger straight back.

At the shot, the home invader’s thoughts apparently turned from murder to survival. He released the woman, ran to the door, and disappeared from view. When police arrived, they found the man dead 40 yards away in an alley. The child’s single careful shot had caught him high in the chest and torn its way side-to-side, coming to rest fully expanded in the opposite side of his rib cage. Along the way, the bullet had slashed through the would-be killer’s aorta.

The criminal justice system investigated, and understood. District Attorney Chris Toth told the press, “He did what he had to do. That’s an unfortunate burden for an 11-year-old to have on him … it’s a tragic situation. Even though this individual who got shot was attempting to rob the mother and her son, he’s still somebody’s son, and obviously this 11-year-old boy was placed in a situation no young person should ever have to face.”

The rescued woman was quoted as saying, “I don’t know how he did that. One shot and he got him. He’s my little hero.” She continued, “He’s proud of himself. He feels bad he took a human life. But he didn’t want to lose me. He lost his dad three years ago to a heart attack.”

When last heard from, the young man had been through counseling and was doing well. He’d be about 21 years old now. I hope he’s still okay.

I wrote in that Ayoob Files 10 years ago, “This was not the first time a child has had to use deadly force in defense of self and family.

A stalker entered the home of his ex and her new lover and shot them both, and the man’s older son. He in turn was shot and killed by the man’s 12-year-old son, with a Ruger Single Six .22 revolver the lad had permission to keep in his room. The youngest such defender I know of was a preschool boy in California who put his mother’s Raven .25 automatic to the head of the man who was attempting to beat her to death, and pulled the trigger, killing the attacker instantly and saving his mother’s life.

Also in California, there was a case of a maniac with a pitchfork who broke into a home and attacked the children who were there. A teenage older sister, unable to access her parents’ locked-up guns, jumped out a window and ran to a neighbor’s house, begging for a weapon. He refused to give her one, instead calling the police. When officers arrived, they were forced to shoot a deadly weapon. On July 6, 2012, I posted the story of the Phoenix boy’s successful protection of his younger siblings on my blog (www.backwoodshome.com/blogs/massadayoob). Many commentators wrote approvingly of loaded guns being available to responsible young people in case of emergency. One even commented he allows his fourteen year old son to carry a loaded gun for protection when home alone. But another reader, Bill H., had a tragic story to share.

“My son’s name was Adrian,” he began. “I taught my three boys gun safety at young ages. They all became proficient handlers of rifles and pistols. They knew the potential. There was no warning. My youngest son, who would have been 15 this month, took his own life with a .38 Special on May 17 of this year. He was a happy, productive and seemingly very stable boy …”

Bill H. concluded, “A girl broke his heart. He made a decision. How could we have foreseen this? We will suffer for the rest of our lives. Food for thought.”

We would probably all agree lethal weapons should be secured from those who have not yet matured into responsibility. However, some reach that level of responsibility sooner than others. There are many cases in the annals of American Rifleman magazine where, for example, youngsters have saved themselves and other children from wild animals and vicious dogs by accessing a loaded gun in the household and shooting the animal. The cases where the “animal” that has to be shot to rescue the innocent has two legs instead of four may be less common but, as we see here, they do occur. Nevertheless, this element must always be balanced against the danger of the sort of tragedy that devastated the family of Bill H.

Capability Factor

Another issue is if the child is responsible enough to be trusted with a gun, the child must also be strong enough and sufficiently familiar with the given firearm to run it effectively. Many years ago, I read of a sad case in the Northeast. An intruder with a stolen gun invaded a home, and held the man of the house at gunpoint, demanding money on threat of death. Recognizing what was happening, the man’s young son rushed to his father’s den and retrieved his dad’s 1911 pistol.

The gun, however, was kept condition three, with a loaded magazine but an empty chamber. The boy tried to rack a cartridge into the barrel, but wasn’t strong enough to cleanly complete the movement, and he jammed the .45. As the kid desperately struggled to clear it, the intruder was alerted by the rattling sound. He shot and killed the child, and then executed the father. He confessed to the details of the double murder later, after his capture.

The Shape Of The Issue

“Ban guns for the sake of the children” is a recurring theme today. A fellow named David Frum wrote the following in July, 2012 in the Huffington Post: “The police can protect you, and will and do. And a gun in the house is not a guarantee of personal security — it is instead a standing invitation to family tragedy. The cold dead hands from which they pry the gun are very unlikely to be the hands of a heroic minuteman defending home and hearth against intruders. They are much more likely to be the hands of a troubled adolescent or a clumsy child.

“In the land of the Second Amendment, nobody will take your guns away. But if you love your children, you should get rid of them voluntarily,” ended Frum.

He wrote that in the wake of the Aurora, Colo. movie theater accident, which involved a 24-year-old doctoral candidate who turned mass murderer. The incident had nothing whatsoever to do with kids handling guns. Yet “kids plus guns equals tragic death” is a mantra the anti-gun crowd just has to invoke whenever “gun control” issues arise.

At such moments, it’s useful to bear in mind there are cases such as the ones we’ve discussed here, where good young people being able to access a loaded gun has prevented murder at the hands of everything from violent adult criminals to dangerous animals. Every year, brave and competent kids rescue drowning people from the water, and pull otherwise helpless victims safely out of burning buildings, and things of that nature. Knowing how to swim and having a grasp of lifeguard procedures can allow a youngster to save someone from otherwise certain death by drowning. Knowing how and when to use a gun can allow that same youngster to save someone from a different manner of death that is just as certain without intervention.

Obviously, there are issues of maturity, competence and responsibility. Some people reach the age of responsibility sooner than others, and some people will never be responsible at all. The parent or guardian needs to take a hard and realistic look at each young person they are charged with raising, before giving that youngster the great power, and commensurately great responsibility, of access to lethal weapons.

In any case, we wish to congratulate the heroic 14-year-old in Arizona youth whose true story began this discussion. We also congratulate his parents, who made the successful outcome possible.
By Massad Ayoob

Get More Ayoob Files

AH JA 13

Order Your Copy Of The American Handgunner Jan/Feb 2013 Issue Today!

New Info On Newhall

Situation:

42 years later, the shootout that changed the face of police
firearms training comes under new scrutiny.

Lesson:

Stories can be altered as they’re passed down over the decades, but those who ignore the lessons of history are still doomed to repeat them.


On April 5, 1970, a gunfight occurred shortly before midnight in the parking lot of a restaurant and gas station in Newhall, California that would send shockwaves through law enforcement and change the face of police firearms and tactics training throughout the nation. I wrote about the Newhall Incident, sometimes called the Newhall Massacre, many years ago in these pages. That particular Ayoob Files became a chapter in my 1995 collection Ayoob Files: The Book published by Police Bookshelf (P.O. Box 122, Concord, NH 03302). In has been more than 42 years since that incident, yet new information continues to emerge to the public. For that I thank Michael Wood, about whom you’ll hear more shortly.

The Incident

It began when the California Highway Patrol received a phone call from a motorist about what we would now call a “road rage” incident, in which the driver of a red 1964 Pontiac had waved what appeared to be a snubnose .38 at him. The caller had fled and gotten to the first available telephone. It was broadcast to CHP officers as a gun-brandishing incident.

Highway Patrolman Roger Gore, driving the black and white Dodge Polara patrol car, and his partner Walter Frago, spotted the vehicle and requested backup. The closest available CHP unit, containing Officer James Pence, Jr. at the wheel and George Alleyn in the “shotgun seat,” radioed back they were responding.

The suspects saw the flashing red lights of Gore and Frago’s marked car and exited the freeway on the Henry Mayo off-ramp, suddenly pulling into a truck stop that comprised a Standard gas station and J’s Restaurant. The backup car had not yet arrived when the lawmen emerged from their vehicle, Gore taking a cover position with his .357 Colt Python drawn and leveled over the hood and engine block of the police Dodge, and Frago standing behind the “curtain of light” from their headlights with the patrol car’s Remington 870 at port arms. Gore loudly and repeatedly ordered the suspects out of the car. They did not comply.

Gore moved forward toward the suspect vehicle, and Frago followed. The dominoes were beginning to fall. The two highway patrolmen had no way of knowing that Bobby Davis, in the driver’s seat, and Jack Twining in the passenger, seat were hardcore cons on parole, both of whom were stone killers who hated cops, and both of whom were armed.

Gore, on the left side of the Pontiac, ordered Davis out. Davis, seemingly meek, complied and put his hands on the side of the car when Gore ordered him to do so. Gore holstered his revolver to do a pat-down frisk. As Frago approached on the right, his shotgun butt on his right hip and the muzzle in the air as he held the gun in his right hand, he reached down with his left for the door handle.

Suddenly, Jack Twining swung the door open. Frago tried to bring the shotgun down into firing position, but Twining already had a 4″ Smith & Wesson Highway Patrolman in his hand, and he shot the officer twice in the chest. The two .357 Magnum slugs tore through and through Walter Frago, and he instantly collapsed, dying.

On the other side of the car, Roger Gore turned his attention from his suspect to the new and deadly threat, redrawing his .357. He fired one shot at his partner’s killer, which missed, and Bobby Davis was now able to whip a 2″ Smith & Wesson Bodyguard revolver from his waistband and shoot Gore twice in the chest. Reports would later say Gore was killed instantly.

It was then the backup car with Pence and Alleyn aboard swept into the scene. They pulled up to the left of the first patrol car, with Pence urgently broadcasting that officers needed assistance and shots were fired. Then he dropped the radio mic and drew his own Python, as Alleyn exited the vehicle from the right. Exposed to the perpetrators, Alleyn began maneuvering to use the first patrol car, on his right for cover.

Pence fired all six rounds in his revolver at the perpetrators. None of the Magnum bullets struck their targets. The suspects were simultaneously firing at the officers, emptying both of the revolvers they had used to kill the first two CHP men. Twining and Davis dove into their car to retrieve more guns: they had some loaded in the back seat, and more in the trunk. Twining dug out a 1911 .45 and fired one shot at the officers, and the gun jammed, its slide locked back with a full 7-round magazine still in the gun, but now useless to him. He dropped it and grabbed another 1911. By now, however, Alleyn was returning fire, and one double-ought pellet from his 870 pierced the back window of the Pontiac and, its force blunted by the heavy safety glass, inflicted a painful but non-fatal wound to Twining’s forehead. Enraged by the pain, Twining emerged from the vehicle with the second .45 and opened fire on Pence.

Meanwhile, Alleyn’s shotgun had run dry. His weapon had been loaded with only four shells, and CHP policy of the time had required tape around the shotgun’s barrel and slide to show supervisors it had been broken any time an officer racked a round into the chamber. Some believe the tape fouled the mechanism, because the evidence shows Alleyn fired only three rounds, and somehow ejected a live round uselessly onto the ground. Alleyn drew his Smith & Wesson Model 19 to continue returning fire.

But Davis had reemerged from the Pontiac with a sawed-off shotgun. From two car lengths away, he hosed Alleyn with it. One blast of buckshot caught Alleyn in the chest — it was the time before soft body armor, remember — and another hit him in the face. Alleyn slumped down behind the patrol car, mortally wounded.

Simultaneously, Twining was shooting at Patrolman Pence with deadly accuracy. He fired four shots, hitting the policeman with three bullets, one in the chest and one in each leg. Still, the young cop desperately tried to reload his Colt, one cartridge at a time from Highway Patrol-issue dump pouches.

Bystander Helps

As this was occurring, former Marine, Gary Kness, entered the scene, saw what was happening, and courageously moved in to assist. He picked up Alleyn’s dropped shotgun, pulled the trigger, and realized the gun wasn’t firing. He pumped the action and was returned with a measly empty “click.” Realizing now the 870 was empty; he picked up Alleyn’s dropped revolver, carefully aimed at Bobby Davis, and fired. However, the .357 Magnum bullet from Alleyn’s S&W apparently encountered the Pontiac first, because all that hit Davis was a bullet fragment that caused a superficial chest wound. Kness triggered the dying state policeman’s .357 again, but it clicked on a spent casing. Knowing he now had no way to fight back, Kness sprinted to cover.

At about this time, to Kness’ left, Jack Twining cautiously approached around the left side of Pence’s patrol car, behind which Pence had taken cover. He apparently saw the officer’s cylinder was still open. Emboldened, he lunged forward and was heard by witnesses to say, “Got you now, (expletive deleted)!” and, as Pence was just starting to close his reloaded cylinder, Twining shot Pence through the brain at close range, killing him instantly.

The gunfight was over. Both cop-killers convened at their car, picking up the revolvers and the shotgun of the first two officers. At this point a third CHP vehicle, containing Highway Patrolmen Ed Holmes and Richard Robinson, pulled into the scene. Both wounded and apparently unwilling to continue the fight, one or both of the cop-killers fired at the third pair of CHP men and put a bullet into their patrol car, then sped away in the Pontiac as Holmes fired two shots at them from his revolver.

Bobby Davis would be captured that night after another encounter with an armed citizen who wounded him, and the next morning, Jack Twining would make his way to a home where he took hostages and had dialogues by telephone with police and even a radio personality. When police stormed the house, Twining killed himself with Frago’s shotgun. Convicted of murder and sentenced to death, Davis escaped the electric chair when California declared a moratorium on the death penalty, and hung himself in prison in 2009, at the age of 67.

Lessons, Updated

To the agency’s everlasting credit, CHP studied the tragedy intensively and in 1975 created a training film that recapped the incident and concluded with seven lessons, using the mnemonic “NEWHALL.”

The Lessons were: Never approach (until you have control of the scene). Evaluate the Offense. (The call had come in as one man brandishing a gun. It turned out to be far more dangerous than that.) Wait for backup. (Had the first two officers done so, they would have had the perpetrators outnumbered, and might have escaped the “action beats reaction” advantage held by Davis and Twining.) Always maintain advantage. A proper felony stop would have had force of numbers on the officers’ side, and would have included waiting until the officers had a more preponderant position of advantage. Look for the unusual. None of the four young highway patrolmen in this incident had more than two years on the job. It has been said Gore had never before had a suspect fail to comply with his orders. Veteran cops concluded the suspects’ refusal to initially exit the vehicle would have tipped a more experienced officer to the possibility of an ambush plan on their part, which turns out to have been the case. Leave the scene when in doubt, maneuvering to a position of greater tactical advantage.

Lessons From Lessons

The quadruple cop killing at Newhall sent powerful ripples throughout the LE world. For instance, of the three officers who returned fire, all were shooting full power .357 Magnum ammunition none had trained or qualified with, at a time when CHP used primarily light .38 Special loads in the training/qualification function. The violent recoil and particularly the blinding muzzleblast of .357 Magnum ammo, even from the 6″ barrel revolvers all of them were firing, could not have been conducive to accurate hits under stress in poor light.

It was later determined 40 shots were fired during the encounter, 25 by the perpetrators. Walter Frago had been killed before he could fire a shot. Roger Gore fired once at Davis before he was murdered by Twining. James Pence fired six shots and was killed before he could complete his reload. George Alleyn went through three rounds fired and one unfired, but inadvertently ejected from his shotgun, and four from his revolver before he went down, mortally wounded. Highway Patrolman Holmes fired two shots at the suspects from his revolver, at the end of the encounter.

Shortly after this incident, though the CHP had allowed its personnel to carry .357s loaded with Magnum ammo instead of the standard .38, .357 ammunition was forbidden for some time and all sworn officers of CHP were required to carry the new standard 110-grain .38 Special +P+ load. This order was later modified to allow .357 Magnum ammunition to be carried at the local post commander’s discretion. It’s my understanding only a few CHP districts, primarily in the northern part of California, were ever actually given this option. In 1990, all CHP personnel were mandated to carry department issue .40 S&W autos.

Clearly, a mechanical inability to reload in time cost the seriously wounded James Pence his life. The last of the officers to fall, he might have been able to cut down his approaching executioner Twining if he had been able to close the cylinder of his Colt Python and return it to action even one second sooner than he did.

Standard issue ammunition carriers for CHP in 1970 were slim, low-profile “drop pouches,” sometimes called “spill pouches” because they spilled loose cartridges into the hand of the officer performing the reload. Not long after that, the California Highway Patrol authorized — and then became the first large American state police agency to issue — speedloaders. Anyone who has ever worked with rapid reloading of revolvers knows how much faster a speedloader is than refilling with loose cartridges one or two at a time.

Twenty years after Newhall, in 1990, California Highway Patrol became the first major American police department to adopt the Smith & Wesson Model 4006 semiautomatic pistol. It carried twice the ammo payload of a 6-shot revolver when fully loaded, and allowed a reload with a spare 11-round magazine faster than any revolver reload in equally skilled hands. The S&W 4006 remains standard issue for CHP to this day, and has served the department well for the entire period, by all accounts.

The application of tape to the mechanism of the Remington 870s was done away with shortly after the Newhall incident, and CHP went to great lengths to teach and reinforce modern tactics of felony stops and officer survival tactics.

Mike Wood’s Revelations

One of my graduates, Mike Wood, was intrigued by the briefing on the Newhall incident when he took my class, and he resolved to study it further. He did something the rest of us had not done: he went to the Los Angeles County Sheriff’s Department, which had conducted the actual investigation into this incident, since it had occurred in their jurisdiction. All the rest of us had relied mainly on the CHP interpretation. LASD had never made their results public. Wood discovered some interesting things.

One was that, though it was known from the beginning the cop-killers had used S&W revolvers to kill the first two officers, it was widely assumed only one of the four CHP men had a Colt and the rest had S&Ws too. This turns out to be incorrect. All of the CHP officers were carrying 6″ revolvers, but only one — George Alleyn’s Model 19 — was a Smith & Wesson. All three of the others carried Colts: Walter Frago was armed with a Colt Officer’s Model Match .38 Special, which was not fired until Bobby Davis snatched it from his holster and fired it at Alleyn, without effect. It was recovered from him after his surrender; he had fired one shot at the armed citizen in the subsequent encounter, and run it empty, before his surrender. Only John Anderson’s 1999 book on the incident mentioned Roger Gore’s gun was a Colt Python, and not until Wood’s research with LASD was it made public that Pence was armed with a Colt Python, too.

A Myth … Busted?

Since the incident, it was said Officer James Pence was found with six spent casings in his trouser pocket, having been trained to pocket his brass before reloading. This would have slowed down his reloading process greatly, contributing to his inability to engage his killer before Twining shot him through the brain. This had already become accepted doctrine when I came into police training in 1972, and I, like so many others, dutifully accepted it as gospel.

By the time I researched this case and wrote it up for American Handgunner the first time however, it had become a subject of debate. As noted in Ayoob Files: The Book in 1995, “Though official sources deny it, some CHP officers insist Pence was found with spent casings in his pocket, a legacy of range training.” It would appear Mike Wood has resolved the debate through his research of LASD Homicide files.
In September 2011, Mike told me the LASD file included a scene photo of Pence’s six spent .357 casings lying on the asphalt where he fell. By third quarter 2012, he was able to show me that evidence photo. I can now accept Pence did indeed eject his empties in his desperate attempt to reload and get back in the fight.

Whence came this story? On May 9, 2012, Mark Schraer wrote in the electronic journal PoliceOne.com he thought it came from the fact the CHP, in changing its training after Newhall, also made it clear putting brass in the pocket was no longer doctrine. This apparently led to a generation of CHP officers believing this mistake must have been made at Newhall.

Not putting brass in the pocket is, of course, still a good idea, and if the point seems moot in the time of the semiautomatic service pistol, remember some auto pistol instructors still insist every reload must be a tactical reload, with every depleted magazine pocketed, even if it’s empty — and even if there’s nothing to refill it with.

In the classic 1980 police training text Street Survival, we find on Page 22 the statement, “Some officers have been killed because they took extra time to catch the ejected cases and put them in their pockets, as they’d done when shooting targets on the range.” We know this was a problem long before Newhall. Bill Jordan wrote in the 1960s of at least one Border Patrol gun battle in which officers found their pockets full of spent revolver brass when it was all over.

Summation

The lessons from Newhall — the slap in the face of American police training that began the “Officer Survival” training of today — endure. But the diligent research of men like Mike Wood reinvigorates those timeless lessons. Keep an eye out for Mike’s forthcoming book on this case. It will be titled something like Newhall: A Tactical Analysis, and will come from FW Publications, the Gun Digest folks, with an electronic edition very likely preceding the printed version.
By Massad Ayoob

Get More Ayoob Files

AH ND 12

Order Your Copy Of The American Handgunner Nov/Dec 2012 Issue Today!

Enemy Within: The Jim Patterson Incident

Situation:

Someone is about to kill you, your wife, and your daughter — and he’s a member of your family.

Lesson:

Sometimes the attack comes from an unexpected quarter — and the dynamics of violent encounters often have to be explained to those who would judge you in the aftermath.


It is October 7, 2009, in the small community of Noel, Mo. Marty Reece and his wife Jindy have been slowly ending a marriage that has degenerated into drug-fueled wife abuse. Jindy and her parents, Jim and Kimberly Patterson, are trying to keep things copasetic for her sake, and the sake of her and her estranged husband’s little boy, 3-year-old Wyatt.

That’s why today, after playing football with his three adopted kids, Jim goes golfing with his son-in-law. It’s a pleasant day; they are getting along well. Jim has a few beers on the golf course, and at a bar where they stop on the way home to shoot some pool. Marty is outpacing him considerably in the beer department, and showing it. When they get to Jim and Kimberly’s house, Jindy is there, and with Marty obviously too drunk to drive, Jindy drives him to the place where he now lives. Jim grabs some dinner while Kimberly takes care of an errand.

In the car with Marty and their little boy, Jindy’s evening is less routine. Marty is in an ugly mood, accusing her of being a “psycho-bitch.” When they arrive at his place, he announces he’s not getting out of the car. Jindy has been through this before; she flips open her cell phone, calls her mom’s mobile number, and asks if Kimberly can pick her and Wyatt up there. Jindy is planning to simply leave the car at Marty’s and pick it up tomorrow when he has sobered up.

Marty rips the phone from her hand and snaps it in half.

Kimberly hurries home to get Jim. Meanwhile, in front of Marty’s home, things are escalating. When Jindy attempts to get out of the car, Marty grabs her by the hair and pulls her back in. He rips the handle off the car’s gearshift, snatches up Jindy’s digital camera, and flings both away.

By now, Kimberly has rushed into the Patterson house and told Jim Jindy is in trouble. At that moment, the phone rings. On the other end is Jindy, who has retrieved the bottom half of her flip phone, and can speak but not hear on the device. Jim hears his daughter cry urgently, “If you can hear me, come now!” Jim quickly puts on some shoes. Kimberly says, “You’d better grab your gun.” Jim hastily makes his way to the bedroom and grabs the Ruger P90 DC .45 he keeps on the top shelf of the closet in an Uncle Mike’s holster. Then he and his wife hurry to the family van and, with Jim at the wheel, head in the direction of their embattled daughter.

By now, Marty has done the hair-pulling thing again, and punched his estranged wife in the head. Jindy has screamed, “Wyatt, wake up, wake up, look what Daddy’s doing!” Perhaps the guilt intrinsic in the thought of his little boy seeing him beat his mother is what does the trick, but now Marty turns his attention from Jindy to the car to vent his rage. He begins pounding on the vehicle and trying to rip the rear door off its hinges.

Jindy sees her parents’ familiar van coming up the hill toward them in the gathering darkness.

Confrontation

As their van comes up the hill, their headlights sweep the other vehicle and Jim and Kimberly see Marty whaling savagely on the car. Jim pulls over, throws the van in Park, and quickly makes his way to his daughter’s side. As he goes past Marty, the son-in-law he has been golfing and playing pool with all day nails him with a solid, full-power sucker punch to the face. Stunned by the blow, Jim grabs Marty in a clinch, and Jindy grabs her estranged husband from behind, trying to pull him off her father.

In moments, all three are in the roadside ditch. Jindy is on her back, and her father is down also, partly on top of her. Marty is above him doing a “ground and pound,” raining punches onto Jim.

Only Kimberly is still standing. She has no idea how to fight. She remembers that Jim’s gun is in the van, and she sprints back to get it. Snatching the Ruger from its holster, she dashes back to the scene. By now, Marty is still on top, and appears to be hammering both her husband and her daughter unconscious.
She hits Marty on the back of the head with the gun. He shows no reaction and keeps punching. She hits him again, and a third time. He ignores the blows and continues hitting Jim.

Desperate to stop him, she points the gun at his lower body, hoping to fire a shot that will wound and disable Marty, and not miss or pass through and hit her loved ones.

Kimberly Patterson pulls the trigger.

Click! Jim has always kept the pistol Condition Three, the 7-round magazine fully filled, and the chamber empty. But the “click” has done what three blows of the aluminum-framed pistol did not. It has gotten Marty Reece’s attention.

He turns toward her savagely. Kimberly sees him rise and come at her, his face a mask of absolute rage. Marty Reece reaches aggressively for the gun as he snarls, “Pistol whip me, bitch?!?”

And at that moment, it hits her that her son-in-law is going to take the gun she doesn’t know how to shoot away from her, and kill her and her husband and her daughter with it.

The Shooting

On his back in the ditch, half on top of his daughter, Jim Patterson sees and feels his assailant spring upward and turn on Jim’s wife of more than 20 years. He sees him move toward her, reaching for the gun, and the adrenaline pushes past the pain and the injury and propels him to his feet. He can see that only a matter of inches separate Marty and Kimberly, and the raging younger man is about to take the gun.

“Give me that son of a bitch,” Jim cries, meaning the .45. Kim tosses the gun to him across the short distance separating them, and he catches it awkwardly in his right hand. He quickly shifts to a firing grasp, his fingers wrapping around the Pachmayr grips, as his left hand grabs the slide and racks it. Marty has seen the gun changing hands, and is now reaching toward Jim to grab the Ruger, and Jim knows there is only one thing he can do to stop this man from killing him and his wife and his daughter.

Jim Patterson pulls the trigger as fast as he can.

The muzzle flashes illuminate the night with a stroboscopic effect. He can see Marty turn away. He stops shooting. Marty falls and says, “Oh, my God, I’m gonna die!”

Jindy tries to give Marty first aid. Kimberly manages to find a cell phone and calls 9-1-1 for paramedics. Jim makes his way back to the van, shoves the still-cocked Ruger P90 into the holster that’s still in the van, and sets it on the front seat — and then begins to weep.

The Investigation

Marty Reece had one thing right that night: he was going to die. Autopsy showed he had sustained five through-and-through gunshot wounds. He had been hit once in the right upper arm, with the bullet reentering the chest and piercing lung, liver and diaphragm, exiting the lower chest on the opposite side. Another bullet had gone side-to-side through the intestines. One slug had gone back to front, cutting a major vessel that brings blood back to the heart, the inferior vena cava. Two more 230-grain FMJ projectiles had entered the back, cutting the spinal cord and exiting through the front of the torso. Gunshot residue on the body was indicative of close-range shooting.

Father, mother and daughter waived their Miranda rights and, still badly shaken, gave video interviews to detectives that night. Sheriff’s department personnel were familiar with Marty Reece’s history of physical violence. Jim Patterson voluntarily submitted to a blood/alcohol test, which in the words of one investigator, showed he “had been drinking a little bit but not enough to be concerned.” The toxicology screen that accompanied the autopsy of Marty Reece showed a blood alcohol content which constituted nearly twice the Missouri standard of too drunk to drive. Though Jindy told investigators Marty had a long history with methamphetamines, and despite the fact she thought meth might have influenced his behavior that night, Marty Reece’s tox screen was clear for drugs.

It appears in the aftermath the Sheriff’s Department determined it was a justifiable homicide. However, the town marshal’s office in Noel, Missouri requested the investigation be turned over to them. This was done.

And soon, Jim Patterson was charged with manslaughter. Not long after, the charge was upped to murder in the second degree.

The Trial

Jim Patterson hired Duane Cooper of Pineville, Missouri as defense counsel. Cooper had come to Pineville as a prosecutor, 2 years out of law school. He had done a number of homicide cases in that role, and in 1999 hung out his shingle as a defense attorney. One of the few criminal defense lawyers who could claim an extraordinary 75-percent acquittal record, he knew what it would take to defend Jim Patterson, and that would include solid expert witness testimony. A “gun-guy” in his private life, Cooper asked around for a reference. Someone told him to call Brandon’s Gun Shop in Joplin, Mo. And, the folks at Brandon’s said, “Call Roy Huntington.”

If the name sounds familiar, Roy Huntington is the editor of American Handgunner magazine, who came to that job after retiring from a 20-year career as a San Diego street cop. He had worked closely with the late, great forensic firearms master Gene Wolberg of the same department, and had testified as an expert witness in Superior Court in the San Diego area — for the prosecution. When he looked at the evidence, he told me he was horrified.

Huntington took the case, and Cooper got a “two-fer” because with Roy came his wife Suzi Huntington, a retired investigator from SDPD and now editor of FMG’s own American COP magazine. Suzi worked behind the scenes, analyzing the investigation elements used by the prosecution and showing they had holes in them large enough to drive a paddy wagon through.

Roy focused on reconstruction of the shooting. Because several of Patterson’s bullets had entered behind lateral midline, the prosecution was basing much of its case on the theory Reece had been “shot in the back,” so it couldn’t be self-defense.

The wheels of justice grind slowly, and the case did not come to trial until February of 2012. When it did, it lasted only 3 days. The case had been brought originally by a prosecutor who was seen by some as not friendly to armed citizens. By time of trial, the case had been inherited by her successor, a young prosecutor named Jonathan Pierce. On the defense side, Duane Cooper held no animosity toward Pierce; he saw his opponent as someone duty-bound to try to make the best of what his predecessor had started.

In Pierce’s pre-trial deposition of Roy Huntington, he had asked, “And that’s your opinion, that it was justified, or was self-defense?” Huntington had replied, “Absolutely. Frankly, I was appalled when I heard this was being prosecuted.” Huntington had shown Pierce the handwriting on the wall, but perhaps the momentum of the case could not be denied.

The trial lasted 3 days, almost all of it consisting of the State’s case. Duane Cooper’s strategy was to win in cross-examination. Armed with Suzi Huntington’s analysis of the flaws in the prosecution theory and his own trial experience, he dismantled the prosecution’s argument like a wrecking ball. Cop after cop — though called by the prosecution — turned into defense witnesses when they honestly answered the cross-examination questions and showed there was simply no reason to believe it was anything other than defense of self and family.

When the State closed its case on the third and last day of trial, Duane Cooper called only two witnesses for the defense. One was a policeman recalled to the stand to clarify a point of evidence. The other was Roy Huntington. For some 2 hours of direct testimony, Huntington explained the work he had done with Wolberg, and his study of research by Dr. Bill Lewinski at Force Science Institute, by me at Lethal Force Institute and others. He made it clear to the jury, with a pistol with short trigger reset such as the Ruger P90 in question, five shots could easily be fired in under a second. All ear-witness and eyewitness testimony had confirmed this rapidity of fire. And, he stressed, an attacker can turn so quickly away from the defender when the tables are turned against him that several shots can be fired before the shooter can mentally process the fact the threat has stopped — and they can cease pulling the trigger. The jury nodded as he spoke, understanding the final piece of the puzzle.

Cross-examination was brief; there was, after all, nothing in Huntington’s testimony that could be effectively challenged. Shortly thereafter, final arguments were made and the case went to the jury. Before that happened, an attempted murder charge (against Kimberly Patterson for clicking on an empty chamber when she tried to disable the man attacking her husband and daughter) was dismissed by Judge Tim Perigo. The charge against James Patterson went to the jury at last.

It took the jurors only 3 hours to find him not guilty on all counts, and the long nightmare was over.

Lessons

The next time someone tells you, “A good shoot is a good shoot,” feel free to laugh. A change in investigating agencies may well have turned a finding of justifiable homicide into a murder charge in this case. Roy Huntington’s explanation of action/reaction paradigms that lit the light bulb for the jury and explained the shots in the back in that fast-breaking moment in the dark, covered things which are not taught in law school and are not common knowledge among the jury pool.

Ditto the fact that “Yes, you can shoot unarmed people who are trying to take your gun and murder you and yours with it, as surely as you could do it if they were reaching for their own gun.”

The traditional advice of “Say nothing to the cops!” is not written in stone. While Duane Cooper, as a defense lawyer, still gives this advice, he’s the first to tell you talking to the cops was helpful to the Patterson family. Jim Patterson’s heartfelt account of what happened, taped hours after the shooting — when he sat in an interrogation room, bare-chested because his blood-soaked shirt had been removed — was so obviously sincere it resonated with the jury. Since there was nothing to add, Duane didn’t even have to put him on the stand.

One deputy testified at trial during Cooper’s cross-examination the statements in the immediate aftermath of the shooting, bearing in mind the three of them had been separated as soon as police arrived on the scene minutes after the incident, “provided a large indicia of truthfulness.”

From the hardware side of things, be sure your loved ones know how to use your gun if they ever need to, and don’t load the damn thing with hardball! Both Kimberly and Jim came within an instant of being disarmed and possibly murdered because the wife didn’t understand how the husband’s gun worked. Every single 230-grain Winchester full metal jacket “.45 hardball” bullet went through-and-through in this case. The circumstances were such that no one was behind Marty trying to pull him away, as had happened with both wife and daughter during the moments before the shots were fired. If they had been there, invisible to the shooter in the dark, the results might have been much more tragic than they were.

It isn’t always “Good Guys 1, Bad Guys 0.” Little Wyatt was in the Reece vehicle in his carseat when his father was killed by his grandfather. All this has not yet been explained to him. That’s going to be tough, and everyone in the family knows it. This is a question perhaps better asked of “Dear Abby” or “Dr. Phil” than of American Handgunner, but history tells us trying to be nice to members of the family who have a history of violently abusing other members of that family, rarely seems to end well.

Another BS alert is when someone says, “The good guy got acquitted in the end, so it’s all just fine.” That’s a little like saying, “After two and a half years of facing death by cancer and the agony and expense of chemotherapy, this patient is cancer free for now, so cancer is nothing to worry about.” James Patterson spent tens of thousands of dollars for his defense, and take it from someone who has followed these things for 33 years as an expert witness in weapons/shooting cases, it could have cost him even more.
Jim Patterson told me later, “Mr. Cooper did an excellent job, and so did Mr. Huntington. If I’d spent a million dollars, I don’t think I could have got a better defense.” The Pattersons and their daughter today have a good relationship, though Jim dreads the day when he has to explain to his grandson why he killed the boy’s father. It’s not a “happy ending” for the Pattersons, just not so horrible an ending as it might have been.
I personally congratulate Duane Cooper, and Roy and Suzi Huntington, for doing justice in this case. It was Roy’s first call to speak for the wrongfully accused instead of his lifelong role of speaking for the prosecution against guilty criminals, and it’s better you hear his feelings on that from him instead of from me. But all of us want American Handgunner readers to understand just what’s at stake, and what can happen in cases like this, and that’s one reason this corner of the magazine exists in the first place.
By Massad Ayoob

Get More The Ayoob Files

AH SO 12

Order Your Copy Of American Handgunner Sept/Oct 2012 Issue Today!

The Jonathan Davis Incident

Situation:

You’re surrounded by an armed gang, and your two companions are shot down next to you. Your response?

Lesson:

“Outnumbered” doesn’t mean “hopelessly outnumbered”… one determined, skilled armed man can do more than most would think … backup weapons are important … and we are reminded “If it was not documented, it didn’t happen.”


Ayoob

Sculptor Mike Trcic’s prodigious talents can be seen at Trcic Studio in Sedona, Ariz., and at www.trcicstudio.com. His striking bronze of Jonathan Davis bears the quote by Thomas Jefferson: “One Man with Courage is a Majority” — a perfect choice.

On the 19th of December in the year 1854, the great California Gold Rush was on. Law enforcement was in its infancy, banditry was common, and it was understood when you went on that quest for the pot of gold at the end of the rainbow, a revolver was as essential a tool as pickaxe, shovel and sifting pan. That was a concept obviously grasped by Captain Jonathan Davis of South Carolina, Dr. Bolivar Sparks of Mississippi and James McDonald of Alabama when they went prospecting along the American River near Placerville, Calif., and not far from Sacramento.

The death battle which occurred there that day was, for several reasons, largely overlooked by historians of the Old West. According to writer Richard Fournier, “…researcher Bill Secrest uncovered the account in the 1980s. John Boessenecker retold the story in his book, Gold Dust and Gunsmoke in 1999.” It has also been the subject of at least one article by the respected historian Bob Boze Bell, and touched on by various bloggers with a penchant for the history of the Western Frontier.

What brought it to our attention was an article in the January 2012 edition of VFW magazine by the aforementioned Richard Fournier. AH readers Max Albritton and Scott Schindehette called that piece to the attention of editor Roy Huntington and myself, and Max was kind enough to even mail a copy of the magazine. Roy and I agreed: the incident is definitely on point for discussion in this space. With the invaluable help of the awesome Old West researcher Rita Ackerman, whom I met a few years ago when we both taught at the Western History Symposium in Tombstone, Ariz., American Handgunner was able to unearth some long-ignored facts, and correlate some modern learning points.

The Incident

As the three prospectors made their way through a remote area known as Rocky Canyon in the foothills of the Sierra Nevadas, they were caught in a very effective ambush. In the first few seconds of gunfire, Mr. McDonald was killed outright, before he could raise a finger to protect himself or his companions. Dr. Sparks was able to draw his revolver and get off two shots. It’s unclear whether he hit any of his antagonists before being shot, himself.

Sparks then collapsed, so severely wounded he could no longer fight. Only one of the party was left standing. He was Captain Jonathan Davis, his rank earned in the Mexican War between 1846 and 1848. He had seen heavy combat, had survived being wounded at the Battle of Churubusco in 1847, and had earned a reputation as a master at wielding both gun and blade.

It was a reputation that would be tested, and reinforced, in the minutes to come.

Davis was armed with two cap-and-ball Colt revolvers and a large knife. This, obviously, was a time to shoot. The ambush had found the party outnumbered by more than three to one. Now, Davis stood alone against as many as 14 armed opponents. He instantly began to return fire.

His skill rapidly changed the odds. One by one, bandits fell. By the time his second and last revolver ran dry, Davis had shot seven of the murderers to the ground.

Writer Fournier notes, “Ammo rapidly depleted on both sides.” It was at this time, apparently, that four of the remaining bandits decided to close in and finish off the sole apparent survivor with edged weapons. One of them was armed with what various accounts describe as “a cutlass,” “a short sword,” a “sabre” and a “4-foot cavalry saber.” He is generally attributed the role of leader. The others were apparently armed with substantial knives.

So, however, was Davis.

As the four outlaws closed on him, Davis drew his final weapon, generally described as a Bowie knife. When they came within a few feet, Davis lunged to meet the attack. In moments, three of the four were out of the fight, mortally wounded or already dead. The swordsman was described by one researcher as “disarmed” by Davis with a flurry of slashes. He tottered away from the scene hideously mutilated, his amputated nose and right index finger on the ground behind him. He would die in a matter of hours.

Historians generally agree the final tally was 11 men killed single-handedly by Captain Jonathan Davis, seven with hot lead and four with cold steel. The remaining three, by some accounts, fled the scene. But there were witnesses who said that only 11 men had ambushed Davis’ party, and that he cut them all down, and that the “14” number came from papers found on the bodies of the deceased indicating the gang had originally had that many members.

Now the last man standing, not just of his own party of three, but of all 14 to 17 men involved, Davis became aware of three more men coming toward him. He drew the unfired revolver from the holster of the dead Alabaman, James McDonald, and braced himself for another deadly fight. Fortunately, the three newcomers came in peace: they were miners who had been hunting on a nearby hillside, and though out of range to assist, had witnessed the entire affair.

They helped to bring the gravely wounded Doctor Sparks off the mountain, but his wounds were too terrible for medicine of the day to successfully treat. Dr. Sparks died a week later.

Accounts seem to agree that Davis emerged with only two minor flesh wounds. It’s unclear whether they were bullet grazes, or cuts from the final encounter. His clothing had been torn by many near misses. www.hubpages.com says: “It was reported there were 28 bullet holes through his hat and clothes … 17 through his hat and 11 through his coat and shirt.” Author Fournier puts it at only six through the hat, but the same tally of 11 through shirt and coat.

The Gang

Richard Fournier described Davis’ opponents as “One cutthroat gang roaming the prospecting paradise (which) consisted of two Americans, one Frenchman, two Britons, five Australians and four Mexicans — the equivalent of an Army infantry squad in number. This assortment of criminal scum had just murdered 10 people, including four Americans, the day before taking on Davis.” However, reports from the newspapers of the time indicate there had been two prior attacks by the bandit gang, numbering 10 murder victims. When the dying leader confessed to the rescuing miners, according to Placerville’s Mountain Democrat newspaper in a reprise of the incident published Nov. 28, 1946, “He said also that they had just commenced operations — having killed six Chinamen 3 days ago, and four Americans, on the day before yesterday.”

Searching the bodies found at the scene, historians seem to agree, Davis and those who came to his aid found the slain criminals to have between them “$491 in gold and silver coin, four ounces of gold dust,” and assorted gold and silver watches, at least some of which were later traced to their previous 10 victims.

Important To Document

In researching this case, I found an amazing dearth of information. The telegraph had come into being when Samuel Morse sent his famous “What hath God wrought?” message in 1844, but the first transcontinental telegraph network wasn’t established until the 1860s. Teletype, pooled news services, and of course the Internet were far, far away in the future. It has long been a truism that “If it wasn’t documented, it didn’t happen.”

Jonathan Davis found this out. He got back to civilization and told his story, and was met with the 21st century equivalent of “Yeah, right … ” (insert rolling-eyes Internet emoticon here).

Stung by the disbelief greeting his account when he reached a populated area, Davis rounded up the witnesses to the incident who had come to help him. All agreed to give sworn statements under oath as to the battle they had seen. The newspapers of the time seem to have taken this as proof positive the incident did, indeed, occur as Davis described.

Respected Western historian Bob Boze Bell wrote in True West magazine, “Three months after the battle, Davis and three eye-witnesses to the fight — John Webster, Isaac Hart and P.S. Robertson — appeared at the offices of the Mountain Democrat. Before Judge R. M. Anderson and a delegation of prominent citizens, the men presented written and verbal depositions of the fight to everyone’s satisfaction.”
Thereafter, the doubters seem to have faded away for the most part, though there would always be questions.

And the lesson we learn is, document such an incident you might be involved with, archive it, and make sure there’s something to solidly prove you did the right thing, even after you’re dead.

What We Don’t Know

What’s generally available as research on this issue does not address exactly how far the good guys were from the bad guys when the bullets were flying. Anthony Belli, writing in the Mountain Democrat in more modern times, could conclude only that it happened “at close range.” Nor do we know the exact kind of weapons used. Did the bandits have rifles, single shot pistols, revolvers, or … ? It’s generally agreed Davis was armed with a brace of Colt percussion revolvers, but it’s unclear if they were the recently introduced .36 Navy model, or .44 Dragoons dating to the previous decade, or the even older Patersons, or the .31 caliber Pocket Model that historians say was a popular concealment gun among those who took part in the Gold Rush.

Technique? We don’t know. Artists’ illustrations of Davis depict him with a Colt in each hand, but it is unclear from what I’ve found so far whether he fired them simultaneously, or sequentially, or emptied one and only then resorted to the other. The exact duration of the encounter seems likewise murky. It is reasonably safe to go with Richard Fournier’s conclusion in VFW that Davis “methodically picked off seven bandits with lethal accuracy.” It’s unclear how many of those “Unlucky Seven” required more than one shot, or how many others may have been wounded by Davis’ fire, but remained ambulatory.

The 1946 reprise by the Mountain Democrat says that “Seven of the deceased robbers were shot in the heart.” Two, five- to six-shot revolvers, 10 to 12 shots means that’s seven heart hits — and what? Were the other shots misfires, or hits elsewhere unrecorded, or simply misses? At this point in time, that seems to be a matter of conjecture.

Another lesson: Don’t assume your opponents to be wimps, but don’t necessarily assume them to be supermen, either. It appears that if 14 thugs were present, at least three of the bandit gang didn’t charge Davis’ position when they realized his guns were empty. In his True West account, Historian Bell stated the last two attackers Davis killed with his knife were “weakened by their wounds from previous raids.” This may have been true of the gang members who hung back and at last fled, and for some of those killed earlier in the fight as well. Those three might have hung back far enough to have gone unnoticed by the distant witnesses who counted only 11.

As to the “weakened” ones, the Mountain Democrat of Dec. 30, 1854 published an allegation that two of the four slashed down by Davis at the end of the fight were so crippled by previous wounds as to be ineffective fighters. There is no way to know at this point in time if that was true, but even if it was, there would have been no way for Davis to assess the physical capability of each of the men charging him, and his killing them in self-defense would have been entirely justified by every standard, then or now, under the circumstances.

Important lesson: Experienced in combat, Jonathan Davis was a hardened warrior, a tempering that served him well on Dec. 19, 1854. He had developed the necessary skills before the event in Rocky Canyon occurred. Anthony Belli wrote in an August 11, 2000 article about the incident in the Mountain Democrat, “In the diggings, Davis was known as an expert pistol shot, and ‘second to none in the state’ for fencing.”

Interesting Parallels

We live now in the time of the Internet, and gun folks being technical folks, the gunnies got to the Net early and established a very strong presence there. Defensive firearms use being a life or death issue after all, it’s no surprise gun-related forums stir some heated debate about armed self-defense, some of which seem to reach the intensity of religion-based warfare. Let’s look at some of the now commonly seen threads and themes there, and how they relate to a battle that occurred 158 years ago.

One often-voiced theory is, “Armed citizens don’t need spare ammo! Show me just one case where anyone did! Show me the link!”

Well, as they say on the Net, “Bwahahaha!” … Google “Captain Jonathan Davis.”

Long since mustered out of the Army after the Mexican War, Davis was an armed citizen. He had to empty two revolvers, and was still in the fight against multiple armed men. When the last of his opponents had fallen or fled, he was approached by still more strangers, whom he had no reason to initially believe had benevolent intent. At this point he took recourse to a third loaded revolver, taken from one of his downed companions. Fortunately, he did not need to use it.

Lesson: No one knows what attack they will face, nor how many attackers will comprise that assault, nor how many shots they’ll need to fire to come out alive.

Another question is, “Ain’t it kinda paranoid to carry more than one gun?” Well, the anti-gunners will say that it’s paranoid to carry one. Jonathan Davis is believed to have been carrying two revolvers … to have shot them both empty … and to have downed seven attackers before his guns ran dry. Whether each revolver was loaded with five bullets or six, and irrespective of how many shots it took to put each of those seven members of the killer gang on the ground, it’s probably safe to assume that he wasn’t putting one double-neutralizing bullet through two bad guys with any given shot.

A cap-and-ball revolver is a particularly laborious thing to reload. A powder flask needs to dump a charge carefully into each and empty chamber. A ball must be inserted over each charged chamber, the ramrod lever has to be precisely pressed down to seat each and every one and the fired percussion caps must be plucked off the nipples at the back of the cylinder one by one, and then replaced one-by-one. All of these are fine motor skill tasks having to be accomplished at high speed with the shaking hands and trembling fingers of a man presumably in full-blown “fight or flight” response, which is well known to destroy fine motor coordination.

Spare pre-loaded cylinders? They were used, for sure, in the Civil War (and even in at least one Clint Eastwood “spaghetti Western” movie), but that was in the future when Jonathan Davis fought his fight, and exchanging cylinders was not exactly a simple gross motor skill, either. It’s irrelevant in any case, because there is no reason to believe Captain Davis had spare cylinders.

Another common weapon discussion today is, “Knife to back up a gun? Come on! That will never happen in real life!” Umm … sorry, it appears it did happen more than a century and a half ago. The last four opponents who were trying to kill Davis were taken out of the fight with his blade after his two guns were depleted. Was the recourse from gun to knife a unique thing that only happened once, all those years ago? No.

In the past year, 2011, a police officer in Tennessee was attacked from behind by a man who tried to rip his Glock 22 out of its holster as the officer stood at a urinal. Responding instantly, the officer secured his .40-caliber pistol with his dominant hand, drew a knife with his non-dominant hand, and proceeded to literally carve the attacker off of his gun.

Many thanks to the readers who alerted us to the Fournier article in VFW, and particular thanks to researcher extraordinaire Rita Ackerman. The Davis incident reminds us all that the hardware, the clothing, and the surroundings may change, but the essential elements of strong-minded armed citizens using weapons to fight off murderous criminals remain pretty much the same over not just the years — but the centuries.
By Massad Ayoob

Suggested Reading: “Mexican War Vet Wages Deadliest Gunfight In American History” by Richard Fournier, VFW magazine, January 2012; “Captain Davis: A California Ballad,” citing “The Sparrowgrass Papers” by Frederic S. Cozzens, Derby & Jackson, New York, 1860, www.elfinspell.com.SparrowgrassPapersBallad.html; “The Gang Slayer: Captain Jonathan Davis vs. 14 Polyglot Killers,” by Bob Boze Bell, www.truewestmagazine.com; “Captain Jonathan Davis’s Incredible Tale,” hubpages.com.; The archives of the Mountain Democrat newspaper, Placerville, CA, http://ritaackerman.weebly.com.

Get More Ayoob Files

AH July/August 12

Order Your Copy Of The American Handgunner July/August 2012 Issue Today!

~