Use of Deadly Force in Defense of a 3rd Person: My Analyis of Southlake “Good Samaritan” Story

kraegThe interwebs have been buzzing over the past 72 hours with the story of an armed citizen in Southlake, Texas who stopped a brutal assault by calling the police and confronting the attacker with his handgun without having to fire a shot. The multiple comment threads I have read through as the incident has gained publicity have made it clear to me that a thoughtful analysis of the incident is warranted in order to quell the plethora of false information and conjecture being espoused by some so called “instructors” and other keyboard ninjas in cyberspace. For the sake of full disclosure, the armed citizen in question does happen to be a friend of mine; but that in no way changes the facts of the situation, the law, or my analysis thereof. Below I will deal with the legal and tactical aspects of the incident.

The Legal Side

Section 9.04 of the Texas Penal Code states:

THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Section 9.33 of the Texas Penal Code states:

DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if:

 (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; 

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

These 2 sections of the Texas Penal code are the statutes most relevant to what occurred during the incident in question. The law plainly states that an individual is justified in using deadly force on behalf of a 3rd person when they reasonably believe that the 3rd person is in a situation where they would be justified in using deadly force in self-defense. What this means in layman’s terms is that if you see another person being put in danger of death or serious bodily injury such that if you were to put yourself in their shoes, you would be compelled to use deadly force in defense of yourself, and you feel that you must intervene immediately with deadly force on behalf of that person; you would be justified in doing so. There is no “grey area” in this statute or any other statute for that matter. The “grey area” has to do with the totality of the circumstances in the given situation. So let’s take a look at what we know about the incident in question.

Aaron Kreag was on his way to a movie with his wife when he spotted a man savagely beating a woman in a parked vehicle with closed fists and elbows to the head and neck. The confrontation witnessed by Kreag is what is known as “disparity of force”. The legal term as described here by Massad Ayoob is “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”. That right there ought to clear up the confusion I have seen over Mr. Kreag being supposedly in the wrong for his armed intervention without seeing a weapon. In situations such as this, there need not be a weapon present for use of deadly force to be justified because the attacker’s fists and elbows ARE the weapons capable of killing or seriously injuring his victim. When Mr. Kreag witnessed this “disparity of force” assault, he was compelled to stop his car, have his wife dial 911, and exit the car with gun drawn to confront the attacker. From his point of view, he was reasonably certain that the attacker was likely to kill or seriously injure his victim if he did not intervene, and he determined that it was therefore immediately necessary to do so. After receiving multiple verbal commands from Mr. Kreag with the gun trained on him, the attacker stopped his assault and turned his attention to Mr. Kreag and was generally compliant until the police arrived. Once the situation de-escalated, Mr. Kreag moved the gun from the fully extended position into a high compressed ready position close to his chest. When police arrived on the scene, he was fully compliant with their commands and was handcuffed for a short time while the scene was secured and witnesses were interviewed. Mr. Kreag clearly articulated his reasoning for drawing his weapon and confronting the attacker, and was released with his weapon to go about his day. The victim of the assault corroborated his story and even hugged and thanked him for intervening and potentially saving her life.

The totality of the circumstances based on the reports of the incident and the statements of Mr. Kreag himself show clearly that he violated no state laws in any way by doing what he did. The DA’s office said as much when contacted by reporters after the incident. The relevant statutes listed above show that his action of producing his weapon and thereby threatening to use deadly force if necessary was fully justified and that in fact his use of deadly force would have been justified had he felt it immediately necessary. A lot of the commentaries I have seen in threads about this story have read something like “he shouldn’t have drawn his gun because he was not in fear for his life” or “you should only draw your gun when you are immediately going to shoot someone”. Both of those statements are ridiculous if you have even a basic understanding of criminal law. There are a lot of situations where you may feel compelled to present your firearm even though shooting is something that may not need to immediately happen. You should never draw your gun unless you are prepared to use it; but drawing it when you don’t immediately need to use it can be the best option in circumstances, such as the ones Mr. Kreag faced. There are plenty of situations where simply drawing your gun may be enough to stop a threat altogether, whether on behalf of yourself or a third person. In Mr. Kreag’s situation, the presence of the gun combined with his verbal commands to the assailant was enough to stop the attack and there was no statute or armed citizen “rule of thumb” violated. In fact: if we look at it from the perspective of the “can vs. should” rule of thumb; Mr. Kreag “could” have been justified in shooting the assailant if he felt it was immediately necessary, but he did what he “should” and de-escalated the situation without firing a shot. From my perspective, Mr. Kreag should be congratulated for handling the situation as calmly as he did once he decided to present his firearm.

We can go on and on about whether or not you or I would have been compelled to draw our firearms in the same circumstance but until we see what Mr. Kreag saw, those discussions are all pure conjecture and speculation. Such analysis is not intellectual or scientific and really is of no value. It is up to the individual to process the events that take place in any given incident and each individual may handle it differently. I am afraid far too many individuals in our society are inclined to pass by an incident such as this and do nothing. Given the options, I hope many in our community of armed citizens are more inclined to do what Mr. Kreag did. There are obviously other routes he could have taken such as calling the police and foregoing the armed confrontation, but there are just as many hypothetical outcomes to that as there are to his chosen course. At the end of the day, we are left to analyze what he chose to do, and from a legal standpoint, he did no wrong.

The Tactical Side

Now that we have established that Mr. Kreag clearly broke no laws, we can do a little bit of “Monday Morning Quarterbacking” as to the tactics he employed once he decided to draw his pistol. The first thing I would say is that he would have been better served to use his vehicle as cover and keep a little bit more standoff from the assailant as he issued verbal commands. That being said, he did have his wife in the car who was on the phone with 911, so he may have been considering her safety inside the vehicle when he decided to position himself in the middle of the street. He was also apparently positioning himself such that the victim would not be in his line of fire should he need to shoot. Using whatever cover is available and as much standoff as possible when dealing with a potential threat especially when you intend to de-escalate the situation is always going to be ideal. I have seen several people in the comment threads suggest that he would have been better served to get into a physical altercation with the assailant as opposed to drawing his gun. That makes absolutely no sense to me as a rational human being. Putting yourself into physical contact with a threat when you don’t need to has a far higher likelihood of ending with someone being shot and/or killed than producing a weapon and maintaining a good standoff does. Mr. Kreag did reasonably well by keeping the distance that he did but I would have liked to have seen him behind some cover if it was possible, which it may not have been given that his wife was in his car.

High Compressed readyThe second thing I would consider is that keeping the gun in the high compressed ready position with his finger indexed from the beginning probably would have conveyed what he wanted it to without extending the gun toward the assailant and putting his finger on the trigger. The high compressed ready position has the double benefit of showing a would be attacker in this situation that you are capable of armed response as you attempt de-escalation as well as maintaining a lower profile for when another armed citizen, security personnel, or the police arrive. Mr. Kreag did move appropriately to the high compressed ready and indexed his finger when the assailant complied with his verbal commands just before the police arrived, as can be seen on the video. He did well in that regard but from a learning standpoint I think he could have accomplished the same goal without extending the gun and pointing it at the assailant. Additionally, having your finger on the trigger prematurely when you don’t immediately intend to take a shot could end badly if the assailant or something else in your environment does something that startles you and causes your grasp reflex to go into action. There have been numerous cases where law enforcement officers have had that exact situation take place and it has caused them to either shoot themselves or the suspect unintentionally. It’s something to consider and a good reason to keep your finger indexed, even if you feel the need to extend the gun, if you aren’t immediately going to shoot. Mr. Kraeg did articulate to the assailant that he would remove his finger from the trigger and compress the gun if the assailant complied with his commands, which he did.

Other than those 2 considerations I cannot think of any other criticism constructive or otherwise that I can give to Mr. Kreag given the facts of the incident. Like I said before, we can debate all day whether you or I would have made the initial decision to present the firearm and confront the attacker, but that is a fruitless discussion in my opinion. Until you are faced with a similar situation, you really don’t know for sure exactly how you will handle it. What we can do is look at the facts of situations like this and learn from them to better prepare ourselves for our own scenarios, should we ever face something similar. With that in mind, I believe that we as a community of armed citizens should commend Mr. Kreag for his handling of the situation and thank God that there are those among us who won’t stand idly by and watch someone get beat to death when they have the wherewithal and the justification to do something about it. I’m proud to call Aaron my friend, and he is without a doubt one of the “good guys” that we want on our side.

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