By Massad Ayoob
Situation: About a hundred different people who’ve gotten in trouble with guns come to you to solve their problem.
Lesson: Naturally, you write a book on it to help keep other people out of the same kind of trouble.
In November of 2015, I attended the inaugural Legal Eagles Firearms Law Seminar hosted in Chehalis, Wash., by old friends and students J.B. Herren and Glenda Edwards of the Northwest Safety First firearms training school (northwestsafetyfirst.com). One of the speakers, for a day of the six-day program, was Attorney James D. “Mitch” Vilos of Utah, a criminal defense lawyer who specializes in firearms cases. Introducing him, J.B. noted the original idea had been to have Vilos as the sole speaker for the whole seminar, and the concept for the conference had been born in a discussion between him and Mitch.
Mitch told us he had done about a hundred gun-related cases himself, and researched hundreds more for his 574-page book Self-Defense Laws of All 50 States, which first appeared in 2010 and came out in a second edition in 2013.
I figured anyone with this background would be very much worth listening to. Turned out, he damn sure was.
Vilos told the dozens of attendees at the seminar, “There are three types of defense generally not prosecuted. Home defense against an uninvited stranger. Also, shooting an attempted mass murderer. The third least-likely type of shooting to be prosecuted is defending yourself against armed robbery.”
He had a case where his client was asked to go to the home of a felon who was married to his client’s sister. The sister wanted her brother to take a firearm out of the house, because it was illegal. When the client came to take the gun, an argument ensued and escalated, and he wound up having to kill his brother-in-law in self-defense. Mitch explained, “The felon said, ‘Get out of my home.’ The client said ‘Make me.’ The felon ran into the bedroom. The racking of a gun was heard. My client drew and shot the guy five times. The felon was found dead with a handgun in his lap. My client said only, ‘I had to defend myself.’”
The shooter retained Mitch. Mitch wrote a letter to the prosecutor telling him everything, subsequent to an agreement with the prosecutor, nothing Mitch said could be used against the client. The outcome? Said Mitch, “The prosecutor brought the family of the deceased into his office and told them it was justified. Under Utah law the felon having a firearm was a forcible felony. He decided not to prosecute.”
In the above case, it should be noted the potential defendant was on thin ice, having gone into another man’s home, even though he was invited by another member of the household. The ice got even thinner when the homeowner ordered him to leave and he answered, “Make me.” Mitch Vilos reminded the class it happened in gun-friendly Utah, where he estimates there are more guns than people.
Mitch also noted curtilage — those areas attached to the home and/or immediately adjacent to it — varies state to state insofar as the degree to which it shares with the residence itself the ancient and honorable Castle Doctrine, which says in essence one’s home is one’s castle, and attacked there by an intruder the resident need not retreat. He offers the following Utah case to make his point:
“There was a break-in in the West Valley. The homeowner, his wife and their two children were asleep at about 3AM when the homeowner was wakened by a loud racket. He came downstairs with his 9mm pistol and discovered an aggressor was outside the house, a split level. A guy was trying to break in through the glass back doors. The homeowner shot through the glass and hit the guy in the heart. He ran a hundred yards. The homeowner, according to the prosecutor, had the right to kill the invader and will not be charged.”
It is important to take into account what is generally called “the mood of the courts” in any given jurisdiction, and this often encompasses “the mood of the prosecutor.” This writer joins with Vilos in cautioning readers a different prosecutor’s office might take a dimmer view of shooting the home invader while he was still outside the house. Not too long ago in Michigan, under somewhat similar circumstances, a man was convicted of murder for shooting through his door and killing a woman who was pounding on the door hard enough to convince him she was trying to break in.
Vilos points out juvenile perpetrators are more likely to be seen as victims than adult criminals when the intended victims harm them in the course of defending themselves and their homes. As an example, Mitch told the class, “In another case the defendant lived in a trailer. Some early teens broke in to steal candy and pop. He shot one of them, who died. Despite strong sentiment for the shooter in the community, the guy was prosecuted. He was acquitted, however.”
Both in his book and in his lecture, Vilos warns of things which can compromise the defendant who acted in legitimate self-defense, and make the case look like something dark and dirty and worthy of a guilty verdict. He calls each of them a “Thumbs-Down Factor,” and devotes an entire chapter of his book to listing and explaining them.
In his lecture, Mitch focused on a case he considers so instructive he devoted an entire chapter to it in Self-Defense Laws of All 50 States. Larry Harmon, 57, lived in a neighborhood of five cabins in the sparsely populated rural community of Frampton Heights, Utah. There was no official neighborhood watch program, but Larry and those who lived around him had an informal agreement to keep an eye on each other’s properties when the residents were away.
The time came when he was awakened from a nap by a knock on his door. By the time he got there to answer it, someone was loudly trying to open the locked door. Larry shouted for them to identify themselves, and then told them to leave. Through a window, he saw them wander to his driveway, where they appeared to be eyeing his vehicles. Then, they walked away.
Concerned, Larry Harmon got into his truck, where he kept a 1911 .45 auto, and having lost sight of the two men drove around to check the other cabins. He found nothing amiss, and then, spotting the two men still on foot, he drove past them, stopped his truck, and stepped out to ask them who they were and what they were doing.
Moments later, the area around Harmon’s truck was littered with five spent .45 ACP casings. One of those men — Douglas Greer, 27, with a methamphetamine conviction on his record — was dead on the ground. The other, Ray Thomas, was fleeing with a gunshot wound through one arm.
State of Utah v. Larry Harmon quickly became a case of “he said/she said.”
Harmon’s story was when he asked them to identify themselves and state their business, they didn’t answer and instead came toward him, spreading out as if to outflank him, with menacing expressions. Both were larger, younger, and stronger than he.
Harmon said they ignored his requests to stop advancing on him. With his back to the truck from which he had by now retrieved the .45, he cocked the hammer, but no one was intimidated. When the man who turned out to be Greer was almost on top of him, he said, he fired in last-ditch desperation and Greer fell. Perceiving Thomas to also be attacking him, Harmon swung the 1911 at him and fired rapidly.
Thomas, the survivor, had an entry wound in the back of his arm and an exit in the front. His story was his and Greer’s vehicle had become stuck in the mud on a nearby road, and they had knocked on Harmon’s door hoping to find help, but left when he told them to. Thomas claimed Harmon had subsequently come up behind them and pulled his truck over in front of them, and emerged brandishing the .45. According to his account, “Harmon held out the gun and asked Thomas if he knew what it was. Thomas replied he did. Harmon then told him the gun was a .45 … Thomas heard the hammer go back on the gun and saw Harmon raise it and shoot Greer in the face from a distance of six to twelve inches. Harmon then pointed the gun at Thomas and asked him if he wanted to get shot, and told him to ‘take off running.’ As Thomas was running away, he heard the gun fire and felt a bullet strike his arm. He also heard several more shots and saw dirt flying in front of him.”
Shortening a long story, Harmon was found guilty of the first degree murder of Greer, and the first degree attempted murder of Thomas. In the chapter in his book on “Thumbs-Down Factors,” Attorney Vilos explains why he thinks it turned out this way.
“1. Harmon was armed with a .45 pistol,” Vilos begins. “2. He shot at and hit Thomas while Thomas was running away. Undisputedly, he had an exit hole in the front of his arm and jacket. Was he trying to kill the witness who ultimately testified against him? 3. Harmon had been drinking. 4. Harmon gave several seemingly inconsistent versions of what he claimed happened including the 911 call and multiple statements to investigators. Giving any statement, let alone multiple statements before re-visiting the scene with your attorney is a bad idea. 5. The DA argued Harmon had time to call the police before using deadly force. From the time he kicked the two intruders off his property until he confronted them with a gun on a dirt road outside of the cabin community, they had traveled a half mile on foot. 6. Although he denied saying it, there was testimony he had told his former girlfriend the law allowed him to ‘kill’ trespassers. Chasing down and killing someone after they commit a misdemeanor is excessive force. 7. The jury may have understood him to be the initial aggressor … the more thumbs-down factors, the greater likelihood of a conviction.”
Vilos’ points are clear. What is not clear to this reviewer is whether trial counsel (this wasn’t one of Mitch’s own cases) used a disparity of force defense. Mitch did point out at the seminar that in Utah, one can expect many of the jurors to be Mormon and not especially tolerant of someone who shoots people while under the influence of intoxicating substances.
Appeal of Harmon’s conviction failed. In affirming his conviction, the Utah State Supreme Court wrote, “The record indicates sufficient evidence upon which the jury could have based its verdict. The undisputed facts indicate Harmon pursued and confronted his victims. Instead of using his cellular phone to report Greer and Thomas to the police, Harmon left his phone at his cabin and took with him his .45 caliber handgun. He then drove his truck past his victims, blocking their passage back to Fillmore. The facts also indicate Greer was shot in the face at a distance of six to twelve inches from the end of Harmon’s gun and Thomas was shot in the back of his arm. From these facts alone, the jury was justified in concluding Harmon was the aggressor and he did not shoot the victims in self-defense.”
Moreover, the same appellate court opinion held, “This case demonstrates several instances of over-zealous advocacy as well as bad judgment on the part of the prosecutor. However, we are not persuaded the errors were substantial or prejudicial to the extent Harmon was denied a fair trial.” (http://caselaw.findlaw.com/ut-supreme-court/1189484.html#sthash.0h4xeelP.dpuf).
The outcome of this shooting incident was devastating to the man who pulled the trigger. Larry Harmon was sentenced to life imprisonment without parole. Between the wounded man and the family of the deceased, their lawsuit against him resulted in an award of $1.5 million, which effectively took the cabin he had tried to protect, and every other asset he had.
Mitch writes, “Did the jury completely discount a legitimate concern I hear from gun owners all the time — being rushed and overpowered by multiple unarmed assailants? Harmon claimed he only fired his gun because Greer and Thomas wouldn’t stop at his commands. Assuming it happened the way he described, what was he supposed to do then? Had they disarmed him, they could have killed him with his own gun. He had a right to confront them and find out why they were going around trying to get into houses. He had a right to arm himself before approaching them. If they rushed him, he had a right to use reasonable force to defend himself … They were obviously much younger, stronger, and more agile. It seems likely they could have easily overpowered Harmon and taken his gun. Why was Greer so close to Harmon unless he refused to stop or back off? I do not recall after reading any evidence in the 1,500-page trial transcript that Harmon, after he stopped his truck, approached the boys. The evidence was the .45 casings fell fairly close to the truck.”
Vilos concludes, “These are very troubling issues for those who carry a weapon for self-defense.”
About Mitch Vilos
Vilos is not just a seasoned attorney with considerable experience in gun cases and self-defense shooting cases. The man is One Of Us. He’s a shooter and a gun collector. He participates in IDPA (International Defensive Pistol Association) and SASS (Single Action Shooting Society) competitions, and in the book recommends IDPA as excellent practice for the law-abiding armed citizen.
He is also a strong, proven advocate of Second Amendment rights, and at the Legal Eagle seminar he urged all in attendance to become directly involved with the ongoing fight to keep our rights — and our descendants’ rights — to effective self-defense.
And, he’s a thinking man. During the heavy question and answer sessions he encouraged, one attendee at the seminar asked, “What do you carry?”
The answer surprised me: a purple SIG 1911 sub-compact, cocked and locked. His rationale was he has seen something I’ve seen go to court too: the lying SOB who thinks you might be carrying a gun, and falsely claims you pulled it on him when you didn’t. Mitch’s strategy is to tell the investigators, “Ask the complainant what the gun he alleges I pulled on him looks like.” If they don’t say “purple,” well …
Frankly, it was the first really good argument for a pastel pistola I’ve run across.
You would think a book titled Self-Defense Laws of All 50 States would be dry and boring. I can tell you, it isn’t. Mitch, his son Evan Vilos, and a crew of dedicated law students and law clerks spent two years laboriously compiling it. The second edition carries the subtitle With “Plain Talk” Summaries and it ain’t kiddin’. You don’t need to be a law school graduate or a Latin major to get a lot out of this book. Vilos distills complex legal principles into plain English, better than a lot of jury instructions do.
Like any good instructor, Vilos understands you can’t go through almost 600 pages of grimness without burning out unless you get some comic relief. His book isn’t a somber treatise. Here and there, he leavens it with humor, usually channeling his SASS alter ego “Pancho Vilos.” Like any good sound bite, it sticks in the reader’s or listener’s mind not just because it might be funny, but because it makes sense.
Consider this installment of Ayoob Files to be a review of Self-Defense Laws of All 50 States and also of Mitch Vilos’ instructive lecture material. You can order the book from Guns West Publishing, Inc., PO Box 1148, Centerville, UT 84014, or by phone at 1-800-530-0222, or from Amazon in dead tree or Kindle format.
And, if I may speak Pancho Vilos’ language, this reviewer gives it a BIG “Thumbs-UP”!