The Down Range Forum
Flying Dragon Productions ( Michael Bane ) => Michael Bane on the Radio => Topic started by: Marshal Halloway on September 21, 2010, 10:46:27 PM
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This week's Down Range Radio focuses on what should concealed carry holders do when they are “made.” This is an important and controversial issue that anyone who carries a gun needs to hear.
Listen to the DR Radio here: http://www.downrange.tv/blog/down-range-radio-179/6168/
Below you'll find some of Michael's thoughts and opinions triggered by shooting in Vegas. In addition, we'll post comments from well known firearms instructors. Forum members are welcome to join.
Quoting Michael:
This is not a specific evaluation of the actions of either Erik Scott or the Las Vegas PD. Suffice to say that we don't know the whole story and won't know the whole story until it is hammered out in subsequent investigations and in court.
What I AM looking for is as much as possible, given differing laws in differing jurisdictions, is a "standard" set of responses for civilian CCW holders faced with similar situations.
Here are some of my thoughts that came out of that discussion:
• When a legal CCW holder is confronted over a trespass issue, that is, carrying a firearm in a business that does not permit such carry:
1) First and foremost, the "Mike O'Day Rule" is immediately in effect:
"Here lies the grave of Mike O'Day
Who died maintaining his right of way
His right was clear
And his will was strong
But he's just as dead as if he'd been wrong"
While we are certainly concerned with the rightness and wrongness of our actions and the actions of others, our primary focus is EXACTLY as it is in a violent encounter — to get you and ours out alive. A secondary consideration is to get you and yours and NOT go directly to jail. I think, in fact, that it is prudent to treat an encounter like this as a Condition Red situation, with — as we saw in Las Vegas — a potential to go from zero to lethal very quickly.
2) A person is not obligated by law to provide ID, information or to answer questions from a store employee or paid security personnel. That said, I might strongly suggest that it makes sense to answer questions — nothing will panic a 22-year old pimple-faced former Taco Bell taco roller faster than dead silence — but to do so ambiguously.
"Excuse me, sir...I'm the assistant manager here and, are you carrying a gun?"
[Amiably: "Why, sir, I don't think that's any of your business. Why would you ask me something like that?"
I don't believe that this is the time, the forum or the audience to deliver a lecture on Second Amendment rights. I want to always answer a question with a question to tie up as much of my opponent's "computing power" as possible. I am NOT interested in his/her answers, nor am I even remotely interested in engaging in a "dialog." The "answer a question with a question" is strictly a tactic aimed at ending the Condition Red.
3) Assuming the confrontation escalates from his side, it seems to me that the "best" — best being defined as the most likely strategy to end the confrontation — would be to simple leave the facility in question, but do so from as strong a position as possible:
"You have a gun and we don't allow guns in this store!"
"Oh, is there a sign posted, because you know by law you have to post a sign...had I seen a sign, I wouldn't have shopped here, because I don't do business with companies who don't respect American's rights...where is your sign?"
Admit nothing...again, a civilian is under no obligation to answer questions to non-sworn store personnel. I think at this point (or earlier) the CCW holder needs to access his/her phone, probably with an inform to the employee. "I'm going to get out my phone, because I may need to call the police or my attorney..."
4) If you're asked to leave, leave — the Mike O'Day Rule is in effect! Two points here — be explicit ("Of course I'm leaving, because I will take my business elsewhere...") and IMMEDIATELY ask to speak to management ("Please ask your store manager to meet me outside the front door...I will be calling both the police, because I feel that you are threatening me here, and my attorney...").
5) Follow though...exit the store, speak with the manager, being sure to get the correct spelling of his/or name; if the encounter with the employee was anything but courteous, call the police and report being threatened. I realize this is controversial, but what I'm trying to do here is establish the "good guy called first" situation.
6) If the employee calls security personnel, I am going to have to come down on the side of calling the police immediately, as I am now being threatened and I want my side of the story on tape at police headquarters. Again, if asked to leave I will immediately leave, as per above. If I have purchased or to-be-purchased product, security personnel are welcome to it. However, I will NOT under any circumstances agree to be searched or allow a search of any kind. Nor will I allow myself to be detained...that is called kidnapping. I mention this because it has happened to me. I set off an alarm on the way out of a Best Buy...security personnel stopped me and asked to see my receipt and the purchased product I was carrying, which I readily showed them. He asked for ID, and I said, "What for?" I was then told that I was going to be searched. I began opening up distance and told the security personnel that I did not consent to a search, would not consent to a search and that if I was touched I would consider it an assault and would respond in kind. I was then told I was being "detained" until the police could be summoned. I said, "No thank you...have a nice day" and left. On that occasion I did not call the police...I should have and would if this happened again (although I've never set foot in Best Buy again).
7) On confrontations with the police, I think we're probably on the same page here — DROP THE GUN, if it's in your hand; if it's not in your hand, KEEP YOUR HANDS IN THE AIR AND MAKE NO MOVE TOWARD YOUR HOLSTERED GUN! Do exactly as you're told! If you're taken into custody, ASK FOR YOUR LAWYER and then SHUT UP!
Okay...what do you guys think so far?
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MB,
I just read this through twice on the blackberry.... All looks sound to me. I think the "engage verbally while exiting anyway" strategy is really important to not causing a panic by just going silent and making for the door. Some people will fail at this moment by not understanding the tactical use of words.... This, as you said, is not a time for legal debate or constitutional history lessons.
I also like the bit about asking for clarification of the policies and to be shown the sign, which is something we've advised for students who accidentally end up in such places. That move usually gets you to the exit and then getting to your car and leaving should be pretty simple.
Rob Pincus
I.C.E. Training
http://www.icetraining.us/
http://www.icetraining.us/
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Michael and da gang,
FYI: Helpful hints, DO NOT ALLOW SECURITY GUARDS to detain you. In many states this is unlawful, you may leave, they have no authority to hold you. Having been harassed a few times (note that I am a police officer) I normally respond with “ You are holding me against my will, this is a felony, kidnapping/unlawful restraint” I then pull my phone out and start dialing 911. Some Guards a tad overzealous.
When asked to leave a store, do so immediately. To stay or otherwise dawdle can and will be construed as trespassing/criminal trespass etc. Make an appt to speak with management at a later date.
+1 on calling the cops (hopefully I will respond!). Leave your phone on while the calltaker/911/dispatch is on the line, they will be recording EVERYTHING. Be polite to the Manager/Guard, stating things like “Don’t touch me” “Ouch” and “ Yes, I am leaving, stop pushing” or the like will be forever in evidence. (as will any heated statements on the CCW’s part…ssshhhhh) A phone in your shirt pocket transmitting will record darn near everything.
Lawyer Lawyer Lawyer, also ACLU (yeah, really) Get those Security and Patrol Cam tapes copied in your Attorneys file asap.
Your doing God’s Work Michael, THANK YOU!
Andy Langlois
http://www.shottist.com/
http://andysleather.com/
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Michael,
Some comments for you;
1. In Arizona it is against the law NOT to leave an establishment if you are carrying a weapon and are asked to leave. A couple of caveats, the establishment must be posted with a correctly worded sign easily seen and the law does not apply to non-Arizona residents (probably because they are presumed not to know state law).
2. That said, for what it is worth, the local Costco here in Prescott is improperly posted.
3. HR-218/LEOSA for active and retired police officers allows you to ignore some of the Arizona concealed carry law sections, such as the prohibition against carrying on school grounds. Isn't that curious?
4. This means you really need to know what the law is where you are.
5. Still, in general, totally agree that arguing and asserting your rights is NOT the way to go. I like your idea of always countering with a question but I would recommend a less threatening or confrontational approach as you don't want to ratchet up the tensions by acting threatening in any way ("I'm calling my attorney/ I'll sue you." might not be as good as "You don't mind if I leave, do you?")
6. If you know the police are going to be involved, totally agree that making your own call and getting your side of events recorded and broadcast to responding units is in your best interests. This should be stressed as most people don't know or teach this and it is very important.
7. Since you cannot possibly know the law in every state or town it is important to keep your weapon concealed and stay as low profile as possible. I'm with you, by the way, I'll not be "Laid a hand to" by store security personnel.
8. Once engaged with the police understand that they have an entirely different perception of the events than do you. If you can't make out what they want you to do DON'T MOVE! (Watch "Cops" on TV as officers point guns at people and scream conflicting commands: "Get on the ground! Don't move! Show me your hands! Get your hands up!") Don't get yourself shot because the police are acting excited, scared, confused, overly-authoritative or crazy. Understand, as well, once the police are there, right or wrong, they are in charge and you must try to do what they tell you to do. Arguing, fleeing, fighting, is not going to be in your best interests. These days there isn't much good for you that is going to come out of a confrontation with the police. Do everything you can to avoid it, but if involved, do your best to be non-threatening and cooperative.
9. We all get angry when our rights are being threatened and none of us likes being pushed around, especially by over zealous people, whether they be idiot store clerks or frightened police officers. Stay as low profile as possible, don't let anyone see that you are carrying, get away from any confrontation if you can, and don't start fights but finish them quickly and efficiently if you have to. Remember: The best gunfight is the one you don't attend!
DVC,
Ed Head
GUNSITE Academy
http://www.gunsite.com
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Silence is threating to many, but choosing words carefully is as important. NEVER LIE, but you don't have to directly answer the question either. I like the "deflect with question" approach that politicians are so good at.
Stock questions asked with sincerity and without threatening the employee's ego. Even asked as though we are buddies.
Is there a store policy on that?
Does the state require a sign?
Is that posted by the front door?
Could we go look?
Would you like me to leave?
Is the store manager around, today?
Want to walk with me?
Hold my packages?
And of course with LEOs or anyone who is armed, No movements unless granted permission. "My ID is in my front left pocket." In more than one case, people have been shot while retrieving their wallets. Think NYC and Florida.
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Michael, I think you have some very sound advice, esp. getting people thinking that they do not need to submit to search or being restrained by store employees.
On the other hand, people must know when to retreat and avoid confrontation, as you spell out. We live in such a society of busybodies that a lot of people are half a second away from becoming enraged at being told what to do yet again by yet someone else who has assumed authority. I've wondered if that was what happened in LV, the guy failed to throttle back the natural outrage at yet another trying to control his actions? There is no way to know.
A man of my acquaintance was involved in a shoving incident some years ago in which a big-box store employee attempted to make him stay in the store to determine if he had purchased the child's bike he was pushing out of the store. His way was blocked by a huge security employee, a man about twice his size, and then the elderly store greeter stepped in and also blocked his way. He pushed past them to leave, but in the effort to get past them, the old greeter guy got his feet tangled and fell down and slid across the floor. Cops called, criminal charges filed. After a lot of effort, he beat the criminal charge, but is now defending a civil complaint against him stemming from that incident.
I mention that incident not because anyone did anything right that day, but to point out that the legal repercussions to resistance can go on and on and on. That is one reason your verbal judo of asking a question in response to the security guy's question is such a good start, IMO. It might open up enough time to disengage without getting into a shoving match or worse.
Gila Hayes
The Firearms Academy of Seattle, Inc.
http://www.firearmsacademy.com
http://www.armedcitizensnetwork.org
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Mike and friends,
Here are some thoughts in random order.
First, I normally wear two guns, a primary and a BUG. I have done so now for 39 years of continual, every day, no exceptions, all the time being armed, all over the US. I have never been challenged on that, not once. The reason? Simple-- I keep my gun(s) concealed. That means no one knows they are there. If I go into a store or other place that doesn't like guns, no one bothers me about it, because they don't know I am armed.
In my experience, the guys who wear guns openly into stores and other public places in urban areas are abrasive, "in your face" personalities, who are to a degree, looking for a confrontation. " Yeah, I'm wearin' a gun. It's my right." may be an accurate statement, but it just starts a confrontation that need not occur at all. I base this statement on a lot of experience with these types, both from a law enforcement perspective and later as a full time trainer. I'm sure there are exceptions, but I never run into them. YMMV.
Second, as has been stated, ALWAYS do exactly what the nice policeman with the big gun says to do! Do not argue, do not hesitate. Do as directed. The time for discussion is AFTER the officer has a perception of control over the situation and feels physically safe. To do otherwise invites being shot by the police.
Mike, I am a bit uncomfortable with your advice about not submitting to being detained by store personnel or security. In some states, including mine, there is no difference between the powers of arrest for a police officer and a security guard or private citizen, for offenses committed in their presence. If carrying into their store is a law violation, you might find yourself facing assault or resisting arrest charges for trying to forcefully disengage once they attempt to detain you. Again, if they don't know you have a gun, they have no reason to attempt to detain you, so keep it concealed.
Finally, I want to second calling the police after any confrontation, no matter how minor, where it becomes public knowledge that you are armed. There are two blanks at the top of a police report. One says "Complainant/Victim", the other says "Suspect". You always want to be listed in the first blank, "Victim", not as "Suspect". Say you have a verbal confrontation with someone who sees that you are carrying a gun, because you carry it visibly. You leave, thinking it's over. He, however, calls the police with your description and tag number, and says you pointed a gun at him and threatened to kill him. The police find you, find a gun on you, and list you as "Suspect" on an Aggravated Assault report. You face a felony charge, bondsman fees, lawyer fees, time off work, and the possibility of prison time and a felony record, all because you were too lazy or immature to conceal your gun properly. Bad juju. Keep it concealed.
Tom Givens
http://www.rangemaster.com
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His store, your gun. Deny and leave.
Get to car and disarm.
Call 911, tell story and describe yourself and vehicle.
When cops arrive and depending on approach, sit down or prone out.
Follow their orders to the letter.
Walt Rauch
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Michael,
This is great information. Being new (within 5 yrs) to CCW, I'm glad that you have this topic for discussion. I have always wondered if someone would ask me, other than an officer, how should I respond to this confrontation. In Michigan we have some fuzzy rules as to where and where not to carry. We have had some conversation at the range regarding this specific topic. You may have heard Michigan has an open carry law, and that has been challenged lately. With cities finding that they need to change their rules, because of a violation in State and Federal law. So for private property owners and even public property and facilities it may sometimes be unclear who is right. The best thing that we pro gun owners can do, is to keep the confrontation low key, diffuse it without escalation, and pick the proper time and place to make your position known. We don't need a dead martyr to prove a point.
Bottom line is I would like to hear more, or even see something about this in a future shows.
Thank you!
Regards, Jim
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A personal thanks to MB and all the professional instructors that have posted this valuable information. Info like this is always welcome, IMHO.
I've been a CCW for 20+ years and a firm believer in not becoming complacent in CCW 'tactics'. The information in this thread is top notch info, and reminds us all the we need to constantly evaluate our own standards of carry regarding our carry environment and the laws governing such. I pretty much lean heavily with what Mr. Givens posted in my own non-professional opinion, and that is the way I carry myself, i.e. "out of sight, out of mind" and "call the cops first and do what they say".
Thanks for sharing,
Chuck Goins
"Peg"
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I'm reminded of the story Michael tells of pulling a .25 on a bad guy. The BG reaction, 'Tell me what do I have to do to get out of this alive.' or something like that. That's my reaction to having guns pointed at me, either by bad guys or police.
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1) First and foremost, the "Mike O'Day Rule" is immediately in effect:
"Here lies the grave of Mike O'Day
Who died maintaining his right of way
His right was clear
And his will was strong
But he's just as dead as if he'd been wrong"
The SHORT version of this is, you don't want to be "dead right".
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Thank you. Thank you. Thank you for such a well written and spoke podcast today. I learned a lot from it and will probbaly replay it every day for a week. I also plan on passing this on to my friends and relatives who are gun-phobic to show that most gun owners are not of the Rambo Mentality. This podcast clearly shows the responsibility side of gun ownership.
I wish it hadn't come from such a high cost.
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I remember John Farnam calling on all of us who carry a firearm every day to become professional gun men and women. This term encompassed military, law enforcement and civilians with carry permits. John meant of becoming a lifelong student and observing a personal code of conduct that would reflect positively on us all as member of the warrior class.
Letting yourself get agitated and indignant because someone questions your right to carry in a business does not lend itself to de-escalation and avoidance. Let your lawyer get indignant; they do it for a living and are probably much better at it than you are.
The responding police officers may be getting mixed messages from dispatch on who is doing what and who is the aggressor. The only thing coming through loud and clear is that somebody has a gun.
In that case some officers will be rushing to the “big” call with what can be described as all balls, no brains. There will be others that will be terrified that they could be putting their own lives on the line. A large group will be planning their actions on the arrival on how they will control the scene and identify the suspect just as you would expect seasoned officers should behave.
All the responding officers will be suffering to some extent from the same physiological and psychological stresses that you should expect in this kind of situation. There will be varying degrees of tunnel vision, auditory exclusion, and time-space distortion. The better trained and experience officers will be able to control and minimize these issues.
The excitable, poorly trained or frightened officers will not. They will see guns that are not there. They will give conflicting orders for the suspect to follow. They may not hear anything other officers are saying or that the suspect is answering to. They see frustration as aggression. They see confusion as defiance. They see movement as the opening of an attack.
This group of officers will kill you if you do not de-escalate the situation by becoming the most complaint person possible. If you follow the advice of the trainers above you’ll never get to this stage. Act professionally.
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7) On confrontations with the police, I think we're probably on the same page here — DROP THE GUN, if it's in your hand; if it's not in your hand, KEEP YOUR HANDS IN THE AIR AND MAKE NO MOVE TOWARD YOUR HOLSTERED GUN! Do exactly as you're told! If you're taken into custody, ASK FOR YOUR LAWYER and then SHUT UP!
Okay...what do you guys think so far?
Perhaps one thing to consider to add if "they" called in.
Discredit the information in the call that "they" made to plant a seed of doubt in the mind of whoever is or will be in control or who may be writing the report. In this you can sidestep at least two things I would consider as mistakes in making your point.
One, justifying one's self which is not going to be well received at the beginning. Lots of people I have been around who were arrested red handed were "innocent" or "justified"....that is standard fare and no one is going to listen until everything is secure and probably not then...hold your breath. Secondly, ponder that the police are going to be "righteous" and will be going on the best information they have so avoid discrediting them for being "stupid" when they are doing the best anyone can do early on.
I do feel we should consider discrediting the information "they" provided to 911 without 1) justifying our actions or 2) berating the officers. Consider the info drifting out of Vegas with terms like "drug crazed" coming out. Even if the initial call in by "them" was accurate, consider nearly all other human communications which 3rd or 4th hand may be nothing like reality. By the time the information filters down to the guys late on the scene there is no telling what they may have heard. Hence it may be worth trying to recognize if there is an opportunity to discredit the call in "they" made.
I ponder that I would only do that if a direct statement was received from the officer like, lending from the example above, "Where are your drugs?" I consider that instead of claiming my innocence I would attack the information without attacking the officer. Maybe something like, "I don't understand what you mean about drugs, search me yourself (they will anyway) and, please, I want to know who made that false allegation so I can file a complaint." Just a little something planted to come back to later.
Just brainstorming here. It seems there may be room to develop something like this at the right time and place to augment the other things we've learned to do.
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While it seems mistakes were made by all parties involved, only Eric didn't get to go home that day.
On other forums I've heard he was a drug addict, that he'd been accused in 2 domestic violence incidents and that he "pulled his gun and aimed it at the police". One policeman said he touched Mr. Harris on the arm as he was leaving the store. If he was that close why didn't he just Taze him instead of killing him?
Anyway I emailed Costco's Corporate office last Wednesday, asking for their official statement on members wearing guns and of course haven't had a reply of any kind. I hope they lose their 'butts' in the civil trial - but Eric will still be dead - because of one Costco employee's over reaction.
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I'm no expert....but I think that the best policy when confronted with police while armed is NEVER TOUCH YOUR GUN. If it's in your hand, drop it. If it's in your holster, put your hands on your head and...even if the cops tell you to take it out....NEVER TOUCH YOUR GUN. Keep your hands on your head and tell the cops where it is (IWB, ankle holster, etc.). Tell them you won't resist, but they have to take it themselves. This way, if nothing else, there's no video or eyewitness account of you reaching for your gun....
JMHO.....worth every penny you've paid for it....
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I agree, Seeker.
If I were holding my firearm when the officers arrived, I'd be holding it by the muzzle with a thumb and finger far from my body and moving slowly to set it on the ground.
And I'd very politely ask them to remove my holstered weapon if they wished me to do so. No use risking a sneeze or fumble or anything as I was nervously trying to draw with a few pistols pointed at me. Easier and safer to just unbuckle and drop my pants.
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Easier and safer to just unbuckle and drop my pants.
Be careful....around here, that would get you shot....
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Depending on what I ate, I might deserve to get shot ;D