Shut Up, Lawyer Up; 2 Bad Shoots

Know before you go.

UPDATED In the past week, two different “road rage” incidents have occurred in the Las Vegas Valley. One man is dead and two have been arrested. In the first “road rage” example, after a minor traffic accident, an 18 year old man, David Rosengrant-Munoz, stole the other party’s phone and threatened him with a gun. The other party had his own gun and shot Rosengrant-Munoz who is now in the hospital and facing charges including attempted murder.

Murder requires “malice aforethought” meaning that one has had time to contemplate their action and is not acting on emotional reflect. Surely after chasing the victim down and skidding to stop behind the victim’s car (stopped at the gate to a relative’s complex) the old soon-to-be felon had time to reconsider his actions. Or at least listen to the police dispatcher who practically begged Rosengrant-Munoz to stop chasing the other driver. Turns out it wasn’t a hit and run after all.

It was after having a gun pointed at him, the phone robbery, and the chase that the other driver shot Rosengrant-Munoz. Without a doubt, the elements of a justifiable use of deadly force were met. The second shooter wasn’t so lucky or smart, but the elements for murder do not appear to exist. In short, he screwed up big time, whether the shoot was truly justified or not. He is now in jail on an “open murder” charge, which means prosecutors can choose from involuntarily manslaughter to murder.

Jim Reed Davis shot and killed Lloyd Ullyott after the latter exited his vehicle to confront Davis. The incident started with a honk and ended with a gunshot. Davis claimed that he could not see Ullyott’s hands and feared that Ullyott might have had “something” in his hands.

A “bare fear,” or an unreasonable fear not supported by facts, is not grounds for justifiable homicide. State law requires that “it must appear that the circumstances were sufficient to excite the fears of a reasonable person” to kill in self-defense. Might is a possibility and killing in self-defense requires probability. Not being unable to see the “attacker’s” hands and having a non-specific fear typically does not satisfy the reasonable fear standard.

This law exists because all too often, during the Wild West days, the town bully or some other unsavory character would provoke a fight and claim that he was afraid the dead man had a concealed weapon. Self-defense acquittals were won on thin pretexts, often no more than the jury deciding if they liked the defendant or the dead man better. “I was in fear for my life” and a lie often excused all manners of murders. Blame was laid on concealed weapons, which were banned. Things did not change until courts, juries, and legislatures changed laws and practices to reject such baseless defenses.

Davis may well have been afraid, but without specific circumstances and facts to illustrate that the fear was a product of events outside Davis’ mind, the killing was not justified. For instance, an old woman shooting at a shadowy figure because shadowy figures are generally scary—not that the shadowy figure was trying to do anything other than go for his evening jog—would be unjustified as well. Just because you are afraid doesn’t mean the fear is a valid one.

The “furtive movement” defense and others like it do have merit, but an assertion like that has to be supported by eyewitness testimony and/or a solid explanation of what the suspect did to justify the fear of imminent death the killer had. For instance, in Davis’ case, he could have articulated the basis for his fear much better. A good attorney could have helped argue that, for instance, given Ullyott’s actions, his aggression, and the way that he held his hand out of sight, gave Davis the impression that Ullyott had a weapon and was intent on entering the vehicle or attacking Davis through the window.

Davis foolishly fell right into a trap the detective set for him by preying on his fear and regret immediately after the incident. From the Sun article:

“In an interview, detectives asked Davis if he had considered rolling up his window, driving around Ullyott or backing up, police said. Davis told them ‘now that he had a chance to think about it, that those would have been good ideas and he wished he had done one of those things,’ police said. According to the report, a woman in Davis’ vehicle told him to back up as Ullyott was approaching them.”

Don’t you wish you could have done something different to avoid being here tonight? Just one little thing. Any rational person would say yes. Maybe Davis should have stopped for ice cream or gone a different route home. Maybe he should have chosen to retire to a bunker in the desert twenty miles from any other person. An attorney would have told Davis not to answer the question or would have given a better answer.

With the additional information in today's LVRJ article, Davis' wife said that Ullyott never tried to get in the vehicle. Davis also may have had temper issues given completion of an anger management course after being charged with destroying property. In this case, the charges against Davis are likely justified, but again, Davis really did not help out his defense (and neither did his wife).

Now, given as Nevada is a “no duty to retreat” state, the detective’s question and Davis’ answer are potentially ill-relevant. In the first example, there would be no need to attempt to do anything to avoid a conflict and the question would be ill-relevant. NRS 200.120 does not require anyone to retreat before using deadly force (or acting in self-defense), if the person not the original aggressor, has a right to be present at the location where deadly force is used, and is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used. No duty to retreat has been Nevada law since the 1870s.

However, NRS 200.200 prohibits anyone from picking a fight and then using the fight to justify homicide; if a fight that you started gets out of hand and you are now in fear for your life, you must have tried to get away, give up, or otherwise attempted to stop fighting before you can legally use deadly force. In this case, the “other options” would be relevant. The million-dollar question is, who was the aggressor? Does a honk equal starting a fight and what else might have transpired to make it one?

I doubt that any lawyer or jury would take honking as starting a fight. Even if there was stupidity back and forth, ultimately Ullyott got out of his car. No duty to retreat would apply in that case leaving the only remaining valid question being: “Was the danger was so urgent and pressing that, in order to save the person’s own life, or to prevent the person from receiving great bodily harm, the killing of the other was absolutely necessary?” That would be for a jury to decide, but I’d bet Davis will take a plea bargain for voluntary manslaughter for a year or so in prison.

Davis could have done himself a huge favor and remained silent. He provided the seeds of his own destruction. A competent attorney could have helped him give a statement that did him more justice. On his own, in the psychological aftermath of a killing, Davis unwittingly provided police and prosecution huge leverage over his fate. Even if truly innocent of any crime, Davis is responsible for his arrest and his open murder charge. After an ambiguous defensive gun use, nothing good can come by talking to the police unrepresented. It’s not a shyster’s game of avoiding responsibility, it’s about getting a fair deal in the midst of an unpleasant event.

As for road rage, never get out of your car, never roll down the window, and keep your gun out of sight until it is absolutely necessary. Vegas attracts terrible drivers and every kind of jerk. Just let the bad behavior go. It’s not worth it. Mr. Ullyott would be alive today if he had stayed in his car, regardless of what Davis did. Willingly participating in a confrontation makes you partially responsible, at least in a cosmic sense, for what happens next.

Something similar happened in Reno this weekend as well. James Upton, who also happens to be a National Guard captain, shot a teen in the leg after he and a neighbor confronted the teens who were “acting suspiciously.” According to the shooter, the teen who got shot approached Upton aggressively and was making threatening gestures. Just guessing from the news article, that Upton also talked to the police while unrepresented.

Shooting someone in the leg seems to me like something one would do if they didn’t intend to kill someone. Guns are made for killing people or wounding them so seriously they cannot kill you; they’re not a good tool to keep a teenager from walking towards you. I doubt that Upton truly felt his life was threatened, but was being set upon by an obnoxious teen who was ready to fight. When all you have is a hammer, all your problems tend to look like nails. Be ready to throw down or create distance, not just shoot people.

Also, this is why it is best not to play cop. If someone gets aggressive, back off and save yourself the trouble. George Zimmerman decided to play cop, got seriously beaten, and was pilloried in the press.

The Problem

The problem here is that at least two of these men likely acted without a solid understanding of when it is acceptable to shoot someone. Using deadly force, whether you kill or not, is only to be done when you or another faces imminent death or serious injury. The question one needs to ask themselves is “Am I certain to die or be badly hurt if I don’t shoot?” before pulling the trigger. Not a possibility, but a probability. I’ve had a gun in my face and I’ve had people threaten to kill me without the means of doing so; only one of those situations would have justified shooting the guy and it wasn’t the loudmouth stomping towards me trying to look tough.

Ordinarily law abiding men and women find themselves in trouble because they lack knowledge and understanding of gun laws. Just because you can buy a gun doesn’t mean you are automatically qualified to use it. A constitutional right doesn’t come with instant common sense. Freedom of speech and a mouth doesn’t enable you to speak eloquently on any topic (especially your own defense). The same way an unrestrained tongue can lead one into all kinds of trouble (like murder charges), so can carrying a gun if you don’t know the law. Carelessness puts people in jail for many reasons.

Nevada Carry exists to help properly educate people on the law and firearm related concepts. A CCW class taken once does not help you make good decisions if you are only there to check the box for your permit. Had Upton and Davis really appreciated the law and when it is okay to shoot someone, they wouldn’t be in jail right now. Neither should have been talking to the police without an attorney either. Be smarter than you think you are.

Nevada Carry Self-Defense page

Don't talk to the police. It's for your own good.

CCWer Responds to Wellness Center Shooting

From Dr. Campbell's Facebook page

A gunman shot two and then killed himself in an incident at a Summerlin Center for Wellness   Thursday afternoon. Thankfully, the wounds were minor and the killer did the right thing early on and ended his miserable excuse for a life before anyone else got hurt. This is a perfect example of why it is not inappropriate for medical office staff to be armed. Not all such shootings result in such limited casualties. As we have said time and time again, the only thing that stops a bad guy with a gun is a good guy with a gun. Barricading the door, hiding, and praying only works if the killer does not find you or shoots through the door. Fighting is a much better option.

Chris Upshaw, a concealed carrier, posted on Facebook that he heard the shots from the neighboring Bagel Cafe (which prohibits customers' guns) and ran to the clinic to assist. He and another armed citizen entered the office with their guns drawn and found that the shooter had already killed himself. Upshaw and the other citizen unloaded the killer's gun and cleared the rest of the building. He reports the two gun shot injuries were minor ones, to a hand and to the other person's forearm. The third injury, a fall, came from the person who jumped out a window.

 

While this was likely not an attempted killing spree (see below), if the shooting continued, perhaps men like Mr. Upshaw would have been able to successfully intervene before police arrived and saved lives. Violence in medical facilities don't have to result in helpless victims at the mercy of the aggressor. In 2015, a robbery at a Las Vegas dentist's office was stopped from turning into something worse when an employee retrieved his gun from his car and shot one of the robbers, freeing two hostages when the surviving robber fled. In Pennsylvania in 2014, a doctor killed a patient that had come to the hospital with plans of going on a killing spree.

 Anti-gunners will count the shooter's suicide as "gun violence" in their statistics, perversely making himself into a victim so that they may push their narrative further. They will gleefully use this to say that licensed concealed carriers are violent and dangerous, despite CCW holders being more law abiding than police officers. If this incident paints armed citizens in a bad light, then likewise the actions of a lying reporter or unscrupulous media organization poisons the whole field of journalism.  If blame must be laid somewhere, let us examine if prescription drugs were a factor in the man's state of mind.

This is speculation: perhaps that his actions, causing only minor wounds to extremities followed by his suicide, were a monstrous way of acting out hidden despair, rather than a unsuccessful attempt at something worse. Or maybe acting thoughtlessly in whatever sad state he was in, once he realized the magnitude of what he had done, he chose to stop and kill himself. There is no honor in the act, but if it was self-punishment for crossing the line from otherwise normal gun owner, it says more for his character than the heartless mass murderers we have seen. 

This isn't a case of a failed system, but rather a case of unpredictable human factors that lead to tragedies. It is a perfect example of guns not causing violence, but a person. No law could have stopped this, no test could have predicted it. Making guns illegal would only leave many defenseless to criminals who illegally have guns or use knives. Perhaps a conversation needs to be had about the chronic prescription of opioid pain medication and the conditions that bring people to vicious desperation. What can be said is that had the gunman known staff in the office was armed, he may have been deterred from acting out, the thought of impulsive violence unthinkable even in a desperate state of mind.

Had this been more serious than it we speculate it to be, then we must be grateful it was not.  Like Friday's shooting rampage in the Bronx hospital (by a doctor, no less), there is no safe place. Gun free zones don't work and it is impossible to predict who will snap and become a killer. No antidote for preventing sudden, impulsive violence has yet been invented. It is a sad an unfortunate reality that it occurs, but the only thing one can do is prepare to defend themselves. Hopefully, Dr. Campbell and his employees will use this as an opportunity to become armed citizens and keep this from ever happening to them again.

There have been 20 mainstream media reports of defensive gun uses in Nevada so far this year amid the countless ones that go unmentioned and unnoticed. Let's hope that Dr. Campbell and his staff use this as a learning experience, as well as many others in the medical profession, to get armed. As far as gun violence is concerned, we must discuss why the violence occurs, not merely how to regulate the tools by which the violence comes by. Solutions only come by addressing the heart of the issue.

-GC

Updated

2016: 21 Defensive Gun Uses in Nevada

Source: Easy Bake Gun Club

In 2016, there were 21 verified (corroborated by the mainstream media, i.e. newspapers and TV stations) defensive gun uses (DGU). This does not include stories posted on social media that didn't make it into the papers, even though we know and trust those of you on Facebook and the forums. Except this DGU, which was reported in both places (please let Nevada Carry break the story first, then call the TV news, we need the street cred, yo).

Download Excel spreadsheet here.

I don't have access to the CDC WISQARS database at the moment (server seems to be down), so I can't verify the actual numbers myself, but one report states that about 103,000 people are killed or injured by guns every year. I'm assuming that includes murder, legal intervention, suicide, and accidents from fatal to minor. That's basically with a wash of even the most conservative estimate of 100,000 defensive gun uses a year. The vast majority of non-shooting defensive gun uses go totally unnoticed, like the a women in Las Vegas who deterred a possible kidnapping and another who prevented an altercation from devolving into a fight simply by openly carrying.

There were also several dubious DGUs. One where a would-be Good Samaritan shot at a suspect shoplifter's car (he also was carrying concealed illegally). The second involves a smoke shop clerk who shot a shoplifter during a flash-mob style robbery. Police arrested him for murder, contending that the dead thief, a 13-year old boy, was not a threat at the time. One other interesting case, that might turn out to be actual self-defense or good for at least a not-guilty verdict was in the case of a man who, during an altercation, claimed to see the victim grab a gun (later determined to be an airgun) and shot him.

Know the self-defense laws before you go, but honestly, if you're the type to read up on when you can and can't shoot someone, you're probably not the type to get into dubious shootings either. And for heaven's sake; why are you stuffing a fake gun in your pants? That's just a recipe for disaster.

As always, reporting from the provinces is spotty, so if you live in rural Nevada and we missed one, let us know. We're also open to verifiable reports not listed in the media.

Illegal Conceal Carrier Shoots at Car

The suspect's booking photo from LVMPD

Thursday night, Stephen Howard, 44, tried to apprehend a shoplifter and shot at the suspect's car. The Las Vegas Sun has the story. He was arrested on carrying a concealed firearm without a permit (NRS 202.350, a felony), unsafe discharge of a firearm (NRS 202.285), and traffic warrants. Bail is a combined $14,930.

There are several lapses in judgement here that are not surprising. Someone who would choose to carry illegal and commit a felony, rather openly carry, which is legal, clearly shouldn't be carrying a gun at all. This was highlighted by the fact that he compounded his mistake by shooting a car.

No circumstances have articulated why it was necessary for a private citizen to intervene with Target security to try to arrest a shoplifter. There was no apparent threat to life. This was not Mr. Howard's store. Unless you or a loved one were a victim, you probably shouldn't attempt to apprehend anyone who isn't an immediately threat to life or limb. Too much risk and liability.

Shooting at a car is a bad idea because it is too difficult to hit the target and if the suspect dies or looses control, a car without a driver is a very dangerous thing. Police are generally discouraged from shooting at suspects in moving cars. It's also illegal for citizens to shoot at a fleeing felon. Read the self-defense laws, please. You are not a cop just because you have a gun and you have no duty to get involve. You can't shoot a fleeing suspect and definitely shouldn't be in a position where they might run you over if you can help it.

This is why training and judgement is extremely important.

Vegas Woman Shoots Stalker

An anonymous woman in Las Vegas defended herself against a stalker who broke into her apartment on September 26. “Police said the woman fired two shots at the man once he made entry into the unit, hitting him once in the chest.”http://www.fox5vegas.com/story/26635005/man-shot

This is her story and her picture, found on Imgur. I am posting it here, as I do not want such a harrowing, yet inspirational, story to disappear.  Original source: http://imgur.com/gallery/giExlcJ

I'm writing this staring at the mess the police left for me, in a bit of a fog.  After 6 months of stalking and threats against my life my stalker finally snapped and decided to kick my door in and make good on his promise. Out of fear, the past month I had begun sleeping with a chair propped against my front door, to give myself a few extra precious seconds in case of emergency. I shudder to think how differently things might've turned out had I  not barricaded the door. I awoke around 1:15 am to the sound of the door giving way after one kick followed by the sounds of my stalker struggling to dislodge the chair while forcing his way inside. I jumped up and grabbed the gun I've learned to do everything even shower with. I stood at the top of my stairs and fired twice. Hitting him in the chest, I hear his scream, his disbelief that I'd stood up for myself… 0 to 100 in milliseconds. I've never been so afraid in my life. I do not know if he is living, but I do know the police have him and that's what helps the most. For months of him evading the police I began to question whether he was unstoppable. Untraceable. Houdini, he would murder me and get away with it. As of now I'm in a haze of guilt, surprise, relief  and disbelief. I shook as the canines drag him out from his hiding place under a bush. I survived,where so many people do not. Holy shit, I survived.
The outpouring of support is WILD. I can’t thank you guys enough. Everyone can be a critic and the fact still remains, you don’t know what you will do in a situation until its presented in front of you. Those who believe there was other things to be done have never had someone tell you that you no longer deserve to draw breath and mean it. And for the should’ve fired a warning shot folks: There are no warning shots, a gun is a deadly force, you only pull that trigger if you are in fear for your life and all other methods of deterring are gone. When he kicked my door in, there was no longer a deterrent preventing harm. Warning shots are dangerous and could hurt the unintended. This is not a wild west movie. That's what responsible gun ownership is. I’ll update once things have calmed down a bit I promise. I’ll write back to everyone and after being isolated for so long,  anyone who wants to be friends, I am always accepting those. A few people have asked so I finally created one, anything that is donated will help and be seriously appreciated.

Support her campaign to recover the money she lost here: http://www.gofundme.com/Stalked

This woman is a survivor. She did what the media and the elitist anti-gun crowd told her not to do. Only by owning and using a gun did she avoid being a victim. The anti-gun folks rail about how making guns harder to obtain and carry will supposedly protect women from violent men, but they ignore stories like this.

Crimes like these are why Nevada’s system of open carry, shall issue concealed weapons permits, and yes, even face-to-face sales without background checks, are necessary to ensure that women can fight back against violent men who may be stronger than they.

Still disagree? Tell me how soon the police would have arrived and if calling 911 would have made a difference. A restraining order? Bug spray? 

Update 10/18/2014: More of her story, in her own words, on Reddit. Note the extreme and determined lengths the stalker went to find and contact her. If you are involved in a situation like this, it is recommended you have NO social media presence at all. 

Update 01/12/2014: This commendable woman is doing well and has become a certified range safety officer with the goal of teaching others how to protect themselves. Article here. She is still affected by things one might describe as PTSD, which one could consider only natural after enduring such stress, trauma, and having to use deadly force (though not in this case) to protect her life. Notice the determination and resolve in her words. This is the woman that Shannon Watts does not care about. The anti-gun crowd would rather have seen this woman dead and/or raped, than her have the ability to defend herself. This is what hand gun ownership is all about.

I will quote the young woman here, as it seems her Reddit post, the source, was deleted.

I thought I’d update my fellow redditors. The past few months have been a roller coaster for me. Since my last update, I’ve moved and started a new job I cherish and made amazing new friends. I now work in a firearm range that doubles as education hub for shooters of all experience levels and recently gained my cert. to become an NRA Range Safety officer.
I can’t even begin to describe how working in this environment has helped me. I get to be around like minded individuals AND help broaden people’s knowledge and understanding of firearms and safe handling while expanding my own. I’ve learned so much from the people that I work with and their positivity and support is what’s been the most helpful.
If I told you that what happened to me no longer affects me I would be dishonest. It does and it does so everyday. I still jump when I hear doorbells or someone knocking. No matter how much I try to shake it, it won’t leave. I have nightmares, more often than I’d like and become anxious when I’m home alone. I am more aware of my immediate surroundings, but I trust less and my small town mindset and naïveté has pretty much vanished. Even certain movies I used to like, I can no longer enjoy because of the subject matter.
A piece of me is forever hollowed by my experience but that part is slowly becoming overshadowed by the part of me that’s helping others to feel more confidently and assertive about not having to become someone’s victim themselves.
After multiple court resets and subpoenas the man who was stalking me made a deal and is scheduled to be sentenced on Feb.11. Initially, I didn’t want to speak at his sentencing, I just wanted to close this hideous chapter and get on with my life but now I feel like I need to.
I need the court to understand the severity of what this person did to me, I still fear the justice system falling under his spell and giving him leniency because he was shot. I need them to understand what it may feel like to have someone hunt you down and toy with you like their prey. Or how you can become accustomed to lodging a chair against your door routinely the same way you brush your teeth before bed. I need them to know that I am a real person and not just a name read off of a piece of paper.
I feel as though I am ready now to look him in the eye and have him swallow the fact that I am the one who put him there. No one saved me, but me. I am alive, I am here despite many threats against my life, and almost giving up myself. I laugh and smile everyday because I know there are others in similar situations who won’t have the chance to. I am so much stronger now because of it. Today, I am happy to report, life is good. So yeah, Ask me anything.

Vegas Man Defends Himself, Kills Armed Burglar

A Vegas resident defended himself against an armed home invasion the other night in Las Vegas. Two suspects kicked in the door of the residence around 11:30 PM. The resident fought back, shooting one of the suspect, but receiving wounds himself. 

Read the full story here at the LVRJ.

The wounded burglar died later, while his partner fled the scene.

Nevada Carry reminds everyone to be always on guard, even when at home. Keep your gun accessible, know how to use it and be willing to use it. Also securely lock any firearms away in a safe when not at home. 

Guns saved this Las Vegan's life. As for the criminal, had he decided not to commit a felony and attempt to murder another person, he would still be alive too.

Don't Fire Warning Shots

Don't fire warning shots. 

Thursday night (12/4/14), a man walked into a Red Lobster near the Meadows Mall in Las Vegas with a gun and attempted to rob the restaurant. We don't know why he wanted to rob a Red Lobster; there probably are much better targets out there and live lobsters stuffed into your pants is something that just isn't going to work out well.

Now and intrepid citizen decided this would be a good time to fire a warning shot.

"However, a person in the restaurant pulled out a gun and fired off a warning shot in the air.  Police said that caused the robber to take off. " Article here.

Not exactly brilliant. If you have cause to fire a warning shot, you likely have cause to shoot the threat. Warning shots can go wild and injure an innocent person. Not to mention hearing damage and scaring the heck out of other people who don't know what's going on.

Someone needs to tell the 'good Samaritan' to not take Vice President Biden's advice on guns.