Fist Vs. Gun: Disparity Of Force
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 …
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!”
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.
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.
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.
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