Andrew Branca, deadly force, grand jury, Houston, imminent threat, Reasonableness, self-defense, taqueria, violent career criminal
In November of 2022, I wrote Self-Defense In A Nation On The Brink. By all means, take the link and read the whole thing. It’s practical advice on the likely consequences of lawful self-defense in America, 2022. Those lessons surely apply no less in 2023.
Basically, if one lawfully employs self-defense, particularly deadly force in red America, it’s more likely than not they won’t be prosecuted, and if state law so specifies, may not even face civil suits. In blue America, one is highly likely to be prosecuted and face civil suits regardless of the law, particularly if one happens to be—unfortunately—white, and the person(s) forcing them to use lawful self-defense was a member of a politically favored victim/tribal group. If one is white and male, the outcome will likely be even worse.
No matter where one is, it’s possible, even likely, the current racist DOJ will prosecute regardless of what the state does. I ended that article thus:
But I had to act, because the police wouldn’t/couldn’t! I had no choice! They were going to kill me!
Remember, in social justice city, they demonized and defunded the police. They loosed mere anarchy, the blood-dimmed tide, and plenty of racist, anarchic maniacs with unlimited passionate intensity, all the while doing everything they could to disarm the law-abiding—that’s you—and innocent—which is also you. They are entirely unable and unwilling to appreciate the inherent irony and will hate and try to destroy you all the more if you dare to point it out. You aren’t part of the accepted narrative, so too bad, you racist, white supremacist, insurrectionist, white rager/hater, you. Jury of your peers? Very funny, you racist. The jury will be comprised of D/S/C true believers.
Have I mentioned what a good idea, what a life-saving idea–it is to stay the hell away from such cities and states?
It is horrific this state of affairs should exist anywhere in America—it’s tyrannical and destructive to our constitutional, representative republic (we’re not a democracy)–but it does. What should you do? Everything possible to avoid even the hint of trouble, and failing that, everything possible to avoid having to use force of any kind. If you live in a D/S/C-ruled city or state, move to a free state right now, and do not vote for D/S/Cs or their policies that caused you to flee unless you want to find yourself, in an unimaginably short span of time, with nowhere safe to move. If none of that works, be prepared to defend yourself in court—state and federal–and good luck. You’re going to need it–we all are.
Travel with me now, gentle readers, to Houston, TX on January 5, 2023. You’re sitting in a Taqueria—a Mexican restaurant—when a 30-year old career criminal burst in and began robbing everyone, pointing a handgun at them. However, in the restaurant was a man legally carrying his own handgun. He waited until the gunman wasn’t pointing his handgun directly at anyone, and until the gunman couldn’t see what he was doing, and fired four shots. The beginning, and end, of the confrontation is visible in the two frames above.
The armed citizen—his name is currently unknown, and it doesn’t really matter—fired four shots, paused a moment and fired four more as the robber was going down, paused a little longer and fired one final shot to the head. The entire shot sequence took only about 5-6 seconds. The final shot was made as the armed citizen was approaching the downed robber, apparently to secure his handgun, which it appears he did immediately after the final shot.
The armed citizen returned everyone’s money and left. He has since retained counsel, and is cooperating with the police. The local prosecutor, a Soros-type leftist, has empaneled a grand jury.
So, good for the lawfully armed citizen. He didn’t know it, but the robber was a career, violent criminal with a lengthy record. Houston is the better for the armed citizen’s actions. What the armed citizen, and the other victims didn’t know, was the gun was a replica.
Now, I refer you to Andrew Branca, the current law of deadly force guru at Legal Insurrection. He’s provided a lengthy and excellent legal exposition, covering not only the general law of deadly force, but the Texas statutes that apply. His article contains several video clips of the incident, so I’ll not repost them here. Branca’s book—The Law Of Self-Defense: The Indispensable Guide To The Armed Citizen–is essential for anyone going armed.
I’ll not repeat most of what Branca has to say. I agree with it completely. I’ll just address some of the usual lunatic, uninformed and emotional commentary that accompanies such events when a career black criminal’s career meets an untimely, but long overdue, violent end.
His gun wasn’t real, so he was no threat to anyone! Nonsense. The gun appeared real, and the robber was acting as though it were real. The victims gave up their valuables in response to what they, and any reasonable person, would have believed to be an imminent threat of serious bodily injury or death. The standard is just that: what would a reasonable person have believed given the same circumstances? If they believed they faced an imminent threat of serious bodily injury or death, they could use deadly force to end that threat in defense of themselves or others.
He was shot in the back; that’s not fair! Nonsense. The robber wasn’t outside the store running way. He was still in the store, pointing the gun at people. Notice the person sitting to the left of the door. The robber put everyone in deadly danger the minute he entered and announced his intentions. It doesn’t matter where the bullets struck him, so long as they stopped him, so long as they ended the imminent threat of serious bodily injury or death. There is no legal or moral principle that requires the innocent to surrender any advantage they can find. The robber defined the terms of the engagement, no one else.
But he was leaving the store; he was heading for the door! Double nonsense. As I previously noted, there was one more person in his direct line of travel. As the video reveals, he was hyped up, erratic, pointing the gun all over the place, including at that person. The victims had no way of knowing what he would do next. Was he just going to run away? Would he suddenly decide he didn’t want to leave any witnesses? Would he abruptly turn and shoot someone? Everyone? When he was shot, the robbery was still very much in progress, and any reasonable person would believe they were still very much in deadly danger.
The armed citizen didn’t know the robber was a career criminal! So? It doesn’t matter. What everyone in that restaurant reasonably knew was the robber was putting them all in imminent danger of serious bodily injury or death. The robber’s criminal record matters only in that there is now one fewer career, violent criminal on the streets. As Branca points out, the robber had been convicted in another robbery that resulted in a death. That no one present didn’t know that is irrelevant to what happened during that robbery.
He didn’t warn the robber before he shot him! There is no legal or moral requirement anyone politely warn someone putting them in imminent deadly danger before ending that threat. Tactically, it’s stupid and likely to make one seriously dead. Things happen fast–5-6 seconds in this case–and in such situations, no one hears what’s being said, they only perceive motion and the attendant threat.
He didn’t have to shoot him nine times! Legal nonsense, but perhaps emotional danger for the armed citizen. If one has the justification for shooting, it doesn’t—mostly—matter how many shots are fired. One may fire as many shots as necessary to end the imminent danger of serious bodily injury or death. Remember, the shots were fired in 5-6 seconds, with momentary pauses between strings of four, four and one shots.
I say “mostly,” because the general principle is as soon as the shots have had the desired effect—the danger is over—one must stop shooting. And that’s where the armed citizen—AC hereinafter—is likely to run into trouble, not because it’s Texas, but because it’s Houston, a sort of Austin-lite in that state.
Branca asserts the first string of shots was surely justified, the second maybe not so much, and the final shot to the head wasn’t. In the strictest legal interpretation, I agree. However, even with the video, there is no way to be sure. We can’t see or hear exactly what the robber is doing or saying, nor can we perceive the continuing threat exactly as the AC did.
Were the second four shots made in response to movement or sounds from the Robber? Could the AC see where the gun was and what the robber was doing with it? I can’t tell from the video available to me. Considering, again, all of the shots were made in 5-6 seconds—I’ve timed that as well as I can—it seems virtually certain the first eight shots were made in good faith, in a good faith belief they were necessary to end the threat. One can even believe, as I do barring convincing evidence to the contrary, the AC deserves the benefit of the doubt. He didn’t start anything, he acted only to save lives.
Pro-criminal types are arguing not only was the poor robber shot in the back, he was shot again when he was lying on the ground, defenseless! The question will be what would the reasonable person in the AC’s shoes have believed was necessary? In this case, four–or five–additional shots. Just because someone is down, doesn’t mean they’re defenseless or stopped. I’ve seen people who appeared to be incapacitated leap up and do serious damage to people. And remember, the AC’s decisions have to be made within 5-6 seconds. Check it out; that’s not much time.
But what about the final shot to what appears to be the head? This one is potentially more problematic. Let’s say the robber dropped his handgun. We don’t know that, but if it were in reach, or even lunging distance, it’s still a deadly threat.
Again, we can’t know what the AC was experiencing, but because of the slightly longer pause between the 8th and 9th shots as compared with the pause between the 4th and 5th shots, one can argue, as many are, the 9th shot was not justified because it was not strictly legally necessary to end the deadly threat.
Here too let’s consider the robber was able to get out the door and was running away. Would the AC have been lawfully able to shoot him then? Almost certainly not, because where would be the threat? There would no longer be an imminent threat to the AC or the other patrons of the restaurant.
Final Thoughts: In this case, the AC would have been wise to stop shooting after four shots, but that assumes ideal conditions we can’t know would have been obtained only with those shots. How does one, in a 5-6 second gun fight, know precisely where their shots have hit and how effective they’ve been as stopping the attacker? The attacker merely falling down isn’t always enough.
Will the grand jury indict? As the old saying goes, a grand jury will indict a ham sandwich, which means the prosecutor presents only what he wants to present to the grand jury. They have to rely entirely on what he tells them. He gets to cherry pick the evidence and the way it’s presented. If he wants the AC indicted, it’s more likely than not he’ll get that indictment. Grand juries don’t always go along, but they usually do. It also depends on the composition of the jury. Texans tend not to be criminal friendly, but Houston is Texan more due to location than to morality.
At trial, the defense would have good arguments, but in order to present them, might have to put the AC on the stand, which is always dangerous. The last shot would be hardest to explain, but not impossible to explain.
Ultimately, if the AC is indicted, and that’s the safe way to bet in Houston or any D/S/C ruled city or state, he’s going to have an uphill battle, unless by mere chance, he gets a jury who believes any armed robber gets what’s coming to him, whether that takes one shot, or nine.
Ultimately, as I noted in June:
What should you do? Everything possible to avoid even the hint of trouble, and failing that, everything possible to avoid having to use force of any kind.
Maybe, if the AC did nothing, the robber would have run away, leaving everyone poorer, but unhurt. Maybe. Maybe he might have decided to kill every witness before leaving.
Yes, we now know he couldn’t have done that, but no one in that restaurant knew it. They reasonably believed the opposite.
There are still lessons to be learned from this case. I would like to see the AC get the benefit of the doubt, but I don’t think that’s very likely in Houston, circa 2023. I would hope any jury would put themselves in the AC’s position and consider the message a conviction would send to everyone confronted by an armed robber: don’t shoot too many times in the span of mere seconds. But how many shots is too many?
Good luck–individually and for society–with that.
UPDATE, 01-18-23, 2040 MT: I’m only surprised it took them this long:
They said the shooting went ‘beyond self-defense’ and also characterized it as ‘a cold-blooded execution.’
While some are calling him a hero, this group wants the shooter to be criminally indicted.
‘We must not allow citizens to become judge, jury and executor,’ the group, which consisted of Dr. Candice Matthews (Texas Coalition of Black Democrats/Rainbow/PUSH Coalition/New Black Panther Nation), Quanell X (New Black Panther Nation), family members of the deceased and other civil rights organizations, said in a statement.
Quanell X said the group is not condoning the actions of 30-year-old Eric Eugene Washington and said he was wrong for robbing the store. They said he deserved to be punished and sent to jail — but not killed.
‘He went too far,’ Quanell X said. ‘That’s overkill. That’s no longer self-defense.’
I’m not saying there’s a racial angle here, but…
Hmmm… I am curious.. being an ex-cop, if you were the armed citizen in that situation what would YOU have done?
Here’s my perception, and it doesn’t mean a damn… after the first round of shots… the armed citizen was in “execution” mode for every shot that followed. Seems to me if a coroner could determine if the first shots were kill shots, meaning the robber was dead and obviously not moving hence making no threatening moves, then anything after would be unlawful discharge of a weapon in public in the least. given his bullets could have gone/deflected anywhere.
On the other hand.. if the coroner says the first four rounds incapacitated but were not likely to cause death.. then the armed citizen likely executed him by his actions and stance over the body.
I would guess a coroner would not be able to determine which shots into the robber’s body were the first volley, although a video might help. But.. I am no lawyer and I’ve never been a civilian cop. But I am sure that this armed citizen had zero intent to take the “just enough action as to neutralize the threat”.
Buck Turgidson said:
Ah, A “just enough” fallaciousness for sure…(a.k.a. mindless obstinacy). My three ‘survival mode’ experiences (in 32 years service) were NOT errorless, but I did prevail. I could not turn-off my transgressions until I was 100% positive hostility ceased. I was often befuddled & envious of how untrained civilians could do that ???
Been fortunate enough to have some really good training over the past 10 or so years from ex Navy SEALS, buddies of a good friend who trains them in swimming. Also had several other CCW and related trainings from a good veteran/former LEO friend who trains and does disaster prep for a living. It’s been drilled into me, you shoot to STOP the threat. Period. As you point out, that’s debatable in this instance, not knowing exactly the circumstances. It would seem that after the first 4 the perp was down, and his weapon could have easily enough been kicked away from him so he couldn’t use it even if he were still conscious and intentional. Just as a rank amateur citizen, not a professional in the field by any stretch of the imagination, I’d have to go along with the opinion that those last few shots, especially the last one, are not going to reflect well on the AC. I’m a woman, a senior, and not over large or strong, and I still wouldn’t feel justified in taking those last few shots, unless the perp had been able to look like he was capable of getting up and going after me or anyone else.
So what would be the charge?
Abuse of a corpse?
6 months unsupervised probation then expunge his record.
Give that guy a medal and 4 free tacos every day.
Jim Underwood said:
“Let’s say the robber dropped his handgun. We don’t know that, but . . .”
I had to watch this a couple times to notice, but after the fourth shot, the robber fell to the ground and dropped the gun which slid away to the robber’s left probably out of reach. After the eighth shot, the AC picked up the weapon and then shot the ninth time. I’d say the AC has a potential problem.
That was my thought as well after reading the description of what happened in Mike’s article. That will increase if the robber is made out to be another Social Justice holy martyr like so many other violent, career criminals with long records have been by the local and national MSM.
But this occurred in Houston, Texas.. the home of the Wild West good ole’ boys in terms of firearms and applied justice. I’m guessing he is a coverboy on the next American Rifleman.
Mike McDaniel said:
Texans know Houston is a pretty leftist place, particularly in its choice of politicians and prosecutors.
It is easy to sit safe at home and play Monday morning quarterback. “He didn’t have to shoot,* *He didn’t have to shoot him that many times.* Yadda yadda.
It is not so easy to make a life-or-death decision in a split second, while terrified.
Which is why I usually give cops and ACs the benefit of any reasonable doubt. That includes shooting an “unarmed” criminal who had a realistic-looking toy weapon. Or an AC who panicked and kept shooting an already -disabled attacker after the danger was over.
SJWs and limousine liberals take it calmly enough whenever an innocent person is murdered by some career criminal who is out on parole for the tenth time. But an act of self-defense has them up in arms.
If the shooter were a member of a favored sacred cow group (black, Muslim, immigrant, or any combination of those), and/or if the decedent were an obviously unarmed,, 5’2″, 100-pound, white veteran wearing a MAGA cap, then there would be no problem.
Mike McDaniel said:
Indeed. Even supposedly highly trained police officers usually don’t do as well as this guy did. As you say, armchair quarterbacking is easy. Dealing with a deadly force situation unfolding in 5-6 seconds is quite something else.
So as I noted, the letter of the letter of the law might place the AC in a hard spot, but the spirit of the law may justifiably exonerate him.
Old 1811 said:
Two things: 1) You state that the DA, a “Soros leftist,” has convened a grand jury. But in Texas, every homicide goes to a grand jury; that’s state law. Nothing nefarious in that, per se.
And, you state, if the downed robber still had the gun in his hand, or even within grabbing distance, he was still a threat, and I agree. But the shooter had already disarmed the robber, and had the robber’s gun in his hand, when he fired the last shot.
I agree with Mr. Branca: The first four shots were justified, the next four were iffy but maybe justified (the shooter could have seen movement the video didn’t pick up), and the ninth shot was bad. We’ll see how it turns out. I’m not too sad that the robber is dead, but I can’t justify the ninth shot.
Just a general point about Houston, Texas.
It is vastly big and varied. The metro area should be described as larger than the State of New Jersey with a population of ~6-7 million. One can find just about any sort of neighborhood.
The one I live in is around 14,000 souls and there has been 1 murder in a 100 years and that was a crazed serial killer who jumped off a nearby RR track and picked a house at random. This became known after the Texas Rangers nabbed him in his village in Old Mexico.
There is a large ChinaTown. There is a larger Little Saigon.
The Texas Medical Center employs about 110,000 people at its main campus alone and many live in the surrounding neighborhoods with their own police forces. The vibe in these areas is nothing like a Strip Mall Tacaria way outside the Loop.
I agree that some D/S/C run cities are too far gone and there is nothing reasonable to do but stay away. However, there are some where it is still possible to avoid the craziness.
This case is a carbon copy of one about 10 years ago in Oklahoma. Got some prizon time, held up on appeal.
If this guy gets a lazy liberal public defender, he will probably be induced to plea to something and will probably take it because of the above.
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