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Disclaimer: This feature Monday morning quarterbacks a defensive gun use (DGU). The advice offered here is presented with the full understanding that the fog of war is as thick as New Mexico Junior College student Annastasia [sic] Wood (who believes that gun-free zones are magically gun-free). As always, it’s the result that counts. But when it comes to protecting life and property with a firearm, there are good ideas (with a high likelihood of a positive outcome) and there are bad ideas (with a low probability of a successful conclusion). In other words, YMMV. So, “the incident happened in the 8000 block of E. South Riverway Avenue in Spokane Valley, Washington . . .

The homeowners told police they’d been burglarized several times in the last few days so they were prepared.

Investigators said when the homeowner realized someone was in his garage he emptied a can of bear spray inside. The suspects inside the garage broke out a window to get out.

A 17-year-old, armed with a machete, was confronted and ordered to drop the machete. Police said when he advanced the homeowner fired his shotgun as a warning. The teen swiftly dropped the machete and a backpack he was carrying and laid down on the ground.

When police arrived the suspect was in the driveway, his hands zip-tied.

Ta-da! So what’s wrong with this picture . . .

1. The homeowners imprisoned, assaulted the perps

While we can’t/don’t trust news reports, it seems pretty clear that the homeowner made it impossible for the bad guys to leave his garage. And then doused them with bear spray. Clever, perhaps. Effective, sure. Legally dubious? Definitely. Strategically unsound? Absolutely.

Once again, the only gunfight (a fight with a gun) that you’re guaranteed to win is the gunfight you don’t have. Why not get as good a description of the bad guys as possible and let them go? Is their capture – by you – worth dying for? If they overwhelm you and there are loved ones in the house, well, that wouldn’t be good. Especially if the perps were severely pissed off about being bear sprayed.

2. The homeowner fired a “warning shot”

From a legal standpoint, warning shots are a Catch-22. You can only aim and/or fire a gun at another human being if you or other innocent life are in imminent danger of death or grievous bodily harm – and imminence is imminent. In other words, you are in the process of being assaulted. If you didn’t shoot directly at the perp, were you really being attacked? If you were, why didn’t you shoot at the attacker(s)?

That said, no jury in the world is going to punish you for firing a warning shot against a machete-wielding burglar with a rap sheet. But it’s something to think about. In fact, I’m sure your “warning shot” was actually a “missed shot.” You might also want to consider the simple fact that you’re responsible for every bullet or pellet you fire. If your “missed shot” hits an innocent party, even if you were defending yourself against an attack, you’re f*cked. Legally speaking.

Strategically, why wouldn’t you shoot the guy advancing with a machete? In the aftermath of a warning shot, while the shotgun’s shock and awe has clouded your judgement, slowing your reaction times, Mr. Machete could easily get a second wind, close the distance between you and him, and use his edged weapon to pierce your internal organs and/or slice you to ribbons. No thanks.

3. The homeowner zip-tied the perp

The bad guy follows your instructions, drops his machete and prones himself on the pavement. Awesome! Now you’re going to give him some verbal commands, approach him unarmed (‘though our homeowner probably had someone “covering” the bad guy), put your hands on a criminal (who knows he’s headed for jail) and tie him up? With his friends unaccounted for, perhaps lingering in the background? Better you than me boyo.

In that situation, with the police on their way, best cover the bad guy with your firearm and tell him what might occur should he decide to move. Kick his weapon away, if it is safe to do so. But then you have to worry about what you look like to arriving police, and what they might do. Let the bad guy go? Well, it is an option.

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  1. 1. The homeowner did not imprison the perp. In most states you are allowed to make a citizens arrest if you witness a felony in progress. Last Time I checked 1st Degree Burglary is definitely a felony. Most of the time they are treated like an arrest by a peace officer with statutory authority however he could be charged with excessive use of force during the arrest.

    Regarding the bearspray – there is no law against bear spraying the inside of your unoccupied garage for rodents, animals, etc. How was the homeowner supposed to know there was some “innocent angel” “mistakenly” in there in the dead of night. If the scumbag tries to do anything, he would have to admit he was in the garage and as such provide proof of his guilt of 1st Degree Burglary.

    2. Probably not the smartest idea to admit to firing a “warning shot”. It was a “missed shot” – don’t back yourself into a corner admitting you fired with the intention of missing.

  2. I’m from Spokane and that warning shoot was into his own fence.guess he got tired of people breaking into his house for his medical weed

    • He shot his own fence? What’s wrong with shooting the ground? Seems like a projectile is a lot less likely to overpenetrate 10,000 miles of rock than 1/2″ of weather-beaten cedar.

      • Warning! Nerdy response follows:

        Closer to 8,000 miles. Do the math. 25,000 divided by Pi = ?

        Sometimes the nerd in me just can’t be controlled…

      • warning shots are “reckless use of a firearm”. firing into the ground will often cause a ricochet, bad news, no telling where or into what or whom projectile(s) will contact.
        Trouble is that under current police state mentality, citizens arrest rights are totally ignored. “Individual was attempting to get up & attack me. I tied him up in self defense as I was in fear for my life and safety”.

    • Here’s a funny thought – what if you’re busy spraying that stuff into the garage and the irritated Bad Guys inside are armed with something more than a machete? Pretty sure anything from .22 through .454 Casull will go through that garage wall, and probably you.

  3. While there are some good points, most are conjecture and defeated by “you weren’t there.” Besides, I’ve never seen a news article that remotely resembled what I had seen with my own eyes.

  4. Other than personal safety reasons, are there any legal reasons that a person should never shift from a personal defense (a DGU) to a citizens arrest (apprehending the offender), if its doable? Generally speaking, a citizen’s arrests is allowed if you are a witness to the crime – so why not?

    • Primary Reason: You would probably get railroaded as a vigilante by a prosecutor looking to make an example in a liberal state.

      It all depends on your circumstances though. I wouldn’t recommend trying to apprehend some scumbag alone. Most of them have friends because they are too much of a “chicken” to commit crimes by themselves. You never know when their buddy might take you from behind by surprise.

      • Some good points there, I agree. Ultimately, it just depends on the circumstances. If you’re out in public someplace, probably try to get others to hold the bad guy down. In public or at home, I wouldn’t want to just stand there with a gun aimed at someone. Too much time and too much can go wrong and, besides, what are you really going to do if they make a run for it, anyway? Shoot them? You would have lost all justification by that point.

        • Interesting, and no you don’t just shoot them, but if you let them run, you haven’t lost anything either, since that was what they would have done anyways. If they don’t run, its a bonus!

      • “You would probably get railroaded as a vigilante by a prosecutor looking to make an example in a liberal state.”

        Probably? Can you cite any actual cases to back that up or are you just guessing? I’ve never heard of anyone being railroaded for merely restraining a violent criminal while waiting for the police to arrive.

    • @ Kyle – Any examples that aren’t D.C.? Is seem to recall at least 2 and maybe three stories covered on this site of people holding at gunpoint or restraining criminals until LEOs arrived. I have yet to hear of someone prosecuted for restraint or vigilantism of any kind for doing so (at least not when they were in their own home).

    • @ BDub

      Citizen’s Arrest?

      Even cops aren’t permitted warning shots. Without being a bona fide LEO with radio communication, available back-up and all the tools of the trade at hand to effect an arrest, no thanks. I’d want ALL the odds stacked in my favor any time I was gonna conduct myself as a cop, especially statutory peace officer arrest authority.

      What if your bad actor has a bad actor accomplice/lookout lurking, armed, out of sight nearby?

      Setting a trap to corner a predator is just asking for trouble; by doing so self-defense becomes a questionable explanation. Admitting preparing a plan to attempt to thwart and then undertaking to capture this kid after having reported recent burglaries creates culpability on the part of the homeowner. Plus, undertaking a citizen’s arrest can easily go sideways – fast.

      Can’t say I don’t like the bear spray pay-back…err…incentive to ward off threatening intruders, especially if bears are known to roam the area. However, “get out now” leaves less residual mess and if the intruders(s) promptly leave the immediate threat is eliminated. Of course, being armed in case it is necessary to thwart an actual deadly attack goes without sayin’.

      Those would be my Monday morning quarter backing thoughts with regard the headline story. ‘Course, I wasn’t there, and the whole event could have just played out spontaneously and in the aftermath the homeowner was just beating his chest to make himself look like a calculating burglar defeating hero not realizing the admissions he made and liabilities he was creating for himself.

      I’d suggest *effectively* securing the garage and dwelling from intruders would actually be a good plan, and much less expensive than a costly legal battle.

      As another note, those utopianist (is that a word?) crybaby students and others complaining about armed security guards on the New Mexico Community College campus are idiots who truly need a dose of real world experience.

  5. Warning shot? With a shotgun? The dead bad guy would serve as a warning to any future bad guys.

    • It could also easily make one a target of relentless, vindictive revenge payback. No more sleep, ever.

  6. The outcome Robert envisions here could just as well have been accomplished by having sold off one’s firearms, disavowing their ownership altogether, and cowering in a closet with the 911 operator on the phone. No thanks.

    If you’re not mentally and physically prepared to defend yourself at least the fullest extent allowed by law, then don’t even bother. You’re probably more apt to get yourself or your loved ones killed or injured with half-hearted half measures in the heat of the moment, then by committing early and stoutly to a policy of victimhood and rescue by the authorities.

    Do, or do not, there is no pussyfoot. Or something like that.

  7. Once the bear spray was deployed and the perp came out of the building he should’ve received 2 to the chest and one to the head. With the perps weapon still in hand would’ve been a clear cut self defense, PERIOD!!!

    • You are forgetting that you would have had to deal with tons of paperwork, scumbags friends who wanna kill you, and most importantly a bloodstain and bullet hole in your stuff which is a pita to clean out.

    • Is this an appropriate time to say “Instead of 2 to the chest and 1 to the head, I was taught ‘a lot’ to the ‘everything’?”

      • If you’re shooting a guy with a shotgun (presumably loaded with buckshot), even 2 to the chest, 1 to the head is kinda overkill. One to the chest will most likely do it (look up the one shot stop ratio of shotgun shoots). Two to the chest will DEFINITELY do it.

  8. I my state and at my home there would be no warning shot fired. A person with a machete that has broke into my home, or any part of it, is a threat to my or my love ones life. With a felony in progress I have the right to use deadly force. No court date would be needed for this bad guy!

  9. If my home had been burglarized several times in the past week, as stated above, and the perp was advancing on me with a machete, I’d shoot him. Warning shot? It’s dark – what’s beyond my target? Better him than the neighbor’s dog, or their kid.

    And let him go after all that? No, it’s not an option. The guy’s broken into my house multiple times already, and now he’s mad at me for showing him up. He is not going to get cut loose to come back at me tomorrow with an extra grudge because I made him lie down on the driveway.

  10. wouldnt do warning shots, wasnt trained that way.
    although i have toyed with the idea of the first round being a less lethal one.

    usually want to leave the bad guys an escape route away from you.

    if a suspect is down, should be cuffed. If you are trained to do it safely.
    doubt if he would be moving with a 12 ga in his neck.

  11. Love the zip tie handcuffs. I agree it’s not a wise move, but I would love to have seen the look on the cops’ faces when they found the perp lying there, secured and ready for transport.

  12. Great story but I’d probably get crucified in Cook County,Illinois if I did this. Especially with all his gangbanger buddies looking for revenge.

  13. I don’t mean to be difficult, but this couple (two people did the apprehending) acted, in my view, totally suburban operator, in a good sense. They intensely peppered the punk, incapacitating him (and making his shooting them a difficult feat if he had a gun). He fled out the window. He moved on them with a machete, but one “missed” shot with the shotgun cowed him. I would think the person who zipped him was not the one with the shotgun. And best of all (agreeing with a comment above) they accomplished the apprehension without making mortal enemies or killing the young fool.

    • I agree, Too bad common sense isn’t allowed by law. There are only two choices, shoot the bastard or let him go.

  14. 230 miles south we had a dgu/home invasion the prosecutor let go. However a neighboring prosecutor was yelling that he’d of nailed that home owner to the wall! It all depends on the a**#****s in charge. I hope this guy ‘stands his ground’ legally speaking.

  15. I have an issue with your sentence, “Why not get as good a description of the bad guys as possible and let them go? Is their capture – by you – worth dying for?”
    If this sentence is, in fact, true, “The homeowners told police they’d been burglarized several times in the last few days”.
    If I was burglarized repeatedly I would have done almost the exact same thing (almost ;^). But I would certainly not ‘get a description and let them go’.
    Stop them on YOUR terms if possible, not the next time when your half asleep and they’re in your bedroom.

  16. On the upside, he stopped the perp. On the downside, everything in his garage is going to be covered in a thin film of bear spray.

    For his sake, I hope he scrubs the hell out of his bike seat.

  17. I think the zip-ties can be a good idea. You don’t want that guy you just ordered to the ground to be back in the fight as soon as his buddy distracts you.

  18. “Let the bad guy go? Well, it is an option.”

    Don’t worry, I’m sure his future victims (or their nexts of kin) will understand.

  19. Or be like this Spokane guy….
    “Jury selection began today in the controversial manslaughter trial of Spokane plumber Gail Gerlach, who shot and killed a 25-year-old man in March of 2013 as the man drove away in Gerlach’s stolen SUV. Prosecutors considered the shooting a case of excessive vigilantism while Gerlach’s supporters argue a right to defend his life and property. ”

  20. The trial lasted 4 days and they just found him not guilty. The state may have to pay his legal fees if found his use of force was justified.

  21. There is a lot of legal fail in this quarterback. Every state is different. Here is California

    1. There is a distinction in PC197 (Justifiable homicide) between justified homicide while resisting murder/rape/robbery/felony, and justified homicide done to prevent such before it occurs. Seeing as brandishing, e.g., also has a self-defense exception the law envisions the possibility of using a firearm short of shooting the guy…

    2. Transferred intent. A man robs a store. The owner retrieves a gun and fires at him. He misses, the bullet goes out the window and hits a boy in the parking lot, killing him. By the not ground in actual law assertion here, the owner is liable. But in actual law, the robber gets sentenced for capital murder, even though it was the owner who fired the killing shot. The doctrine of transferred intent means that the action of the owner was justifiable and he is covered, even though the result was not what was intended. But since the perp intended violence, any harm ensuing from his actions isconsidered his responsibility as transferred intent.

    A summary is this, intent follows the bullet. If I tend to justifiably shoot A and hit B, my intent remains. If I intend to murder A, and hit B instead, same deal.

    The same is true in tort law. A classic example in law books is this. A attacks B. B swings at A in self defense, but A ducks and hits C, breaking his jaw say. C cannot recover damages from B, because B´ s actions are legally privileged (self-defense), though he may be able to recover damages from A.

    It would be required to show that B’s attempt to engage in self-defense was done in a reckless or negligent manner. Now a warning shot may indeed be that. But it is not as simple as saying you are liable for whatever the bullet hits, ethically or legally.

  22. The only part if the story that seems suspect is the use of bear spray. I wouldn’t recommend attacking someone before having a reasonable idea of whether the person is a danger.

    For instance, say a woman has been attacked by a serial killer/rapist but escapes with a machete and is able to hide In your barn. After the bear spray attack she runs out if the barn and you shoot her dead because she is armed. Far fetched, but I would rather be surer of my target.

  23. Also be very careful. A barn would not be considered your residence in some states and you may not be allowed to use force to protect it in some jurisdictions.

  24. It is hard to argue with success. I congratulate the homeowner(s) for keeping cool under pressure and finding a non lethal solution. As the recent Albuquerque debacle showed, it would have been easy to gun the 17 year old down. The homeowner(s) did the right thing for the neighborhood by capturing the burglar, if they had just let him go chances are he would never have been caught. Nationally, only 12.7% of burglaries ever result in an arrest. Altogether, this story brightened my morning. Thank you for posting it, Robert!

  25. Hey, I thought our illustrious and highly intellectual Vice President RECOMMENDED firing a warning shot with a shotgun? Why are you harshing on the homeowner in the story?

    • And here I’d been practicing the warning double. I thought Joe recommended firing both barrels. No? Oh jeez, back for more practice.

      • yep, firing warning shots from both barrels of a double barrel shotgun sounds like something our illustrious and intellectual VP would do. That’s why Al Qaeda sent out a directive not to assassinate him – they said he does more harm to the US alive. True story.

  26. I live in Spokane and especially with the zipcuffs I would say there is a pretty good chance this guy is active or at least former military.

    • I haven’t seen it stated that they were actual zipcuffs. My takeaway from the news stories is that they were improvised from standard zipties.

      • Ah. Typical case of not actually reading the article. Ya, that makes sense and hey, impro works just fine as long as you’ve got eyes on.

  27. Annastasia Wood is another deceived believer that “signs = reality”, just like Donna, the Deer Lady.

  28. With all due respect Robert, I must disagree with your conclusions on this matter.

    1/ Bear Spray: What better way to “flush out” whatever is banging around in your garage?
    2/ Warning Shot: A fine old tradition that should be revived, especially against someone armed with a close in weapon. Nothing is more persuasive that a blast of shot hitting nearby – best safely fired into the ground. Besides – all the tough talk aside – do you really want the death of some screwed-up 17 year old on your conscience if not really necessary – never mind the ensuing trials and tribulations forthcoming. The jump between simply yelling and (possibly) killing is just too great.
    3/ Restraining: Risky? Yes if you’re alone but a fine idea if you’re keepin’ them covered. What’s wrong with that?

    All in all I am troubled by the attitude that we must play by their rules. Discretion and necessary adjustments yes but feeling bound by the ridiculous procedures dictated by the uninformed powers-that-be, no thanks!

    • Universal justification for use of deadly (I prefer lethal)force, both for LEO & civilians:
      1) Must have means of inflicting death or serious bodily harm (yes Virginia, Fists & feet qualify)

      2) Must have demonstrated intent to use deadly force (as in approaching you in an aggressive manner)

      3) Must be close enough to actually use weapons for assault (Dr. Tueller created the “Tueller drill to demonstrate that an armed & aggressive individual can cover 21 feet before a TRAINED individual can draw & fire accurately a holstered firerarm).

      & #4 “preclusion” which means that any or all other means of lesser force are unavailable or have been used and have been ineffective. As in bear spray and still attacking.
      any questions??

      • Yes, I do have a question. What is your point?
        Of course he had justification to fire at the prep – just didn’t want to go that far as long as any other option was available. I’m talking instincts – not quotes from some rulebook. Anyone who has ever been in such a situation would know that.
        You go your way, I’ll go mine – any questions?

  29. “That said, no jury in the world is going to punish you for firing a warning shot against a machete-wielding burglar with a rap sheet. ”

    Actually, I think that plenty of juries would. I’ve been in the selection process, and the people who where empaneled were, shall we say, not the brightest bulbs in the bunch. In fact, it seemed that people who showed high intelligence were kicked off for various reasons.

    • Ah, the jury system. An anachronism from an era when juries were filled by your peers, instead of unemployed welfare queens and retirees with Alzheimer’s.

  30. How about “asking” him to strip, and ziptying his dumb ass to a telephone pole? Call the cops after the morning alarm goes off, and hope the mosquitoes are hungry.

  31. I was young, and untrained, but I did have a .410 shotgun. I fired a “warning shot” instead of pointing the gun at my attacker. I would never do that again. If you’d like to read the details of that encounter, take a look:

    I’m very lucky to be alive now, and my attacker didn’t have any kind of weapon except his superior size, strength and hands.

  32. Im glad I’m in Texas here if somebody breaks into your house it is assumed by statute that they are a threat and use of force is justified.
    Also we can use deadly force if needed to protect property also. So guarding your property that has been a target of criminals is perfectly legal. Not evidence of some pre meditated murder.

    That said zip tying the guy was risky. So was not shooting him when he saw him with the machete. If a home invader was within 25 feet of me with a machete I would have shot him first then told him to drop it. And called the ambulance and then the police.

    No need for zip ties though

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