Written by Second Call Defense Attorney Sean Maloney
This year has been a dangerous time for all of us. From civil unrest, cancel culture attacking law enforcement, a sharp increase in violent crime throughout the United States, a 25% increase in homicides year over year, all resulting in record gun sales, and increased use of lethal force self-defense incidences.
Second Call Defense (SCD) Members have not been immune from the increase of violent crime, as the following Member incident indicates. Legal information and education have always been a large part of what Second Call Defense offers its Members. So how then do we as law-abiding Second Call Defense Members prepare for the worst? How do we recreate the fear, the rush of adrenaline, the confusion, the decision-making process in a life-or-death struggle? We can’t, not really. It’s impossible to truly practice using lethal force for obvious reasons, sure we can hone our skills at the range, but we cannot truly recreate the physical and psychological aspects of a life-or-death lethal force encounter. So, we do the next best thing, we learn from those that have been forced to use lethal force and lived to tell us their stories.
The case that is the focus of this week’s newsletter is still active. As the SCD Member Attorney, I can’t reveal everything I know, but I can share enough information to teach us all valuable lessons. In the incident that follows, Law Enforcement and the Prosecutor Offices have cleared the Second Call Defense Member of any wrongdoing and praised him for his actions. So why is this case still active many months later? The felony murder rule is why. In the incident, the accomplice that played a part in the Second Call Defense Member attack is still at large and the Prosecutor plans to charge the accomplice with Felony Murder along with other criminal charges, once apprehended.
Felony murder is a legal principle that expands the definition of murder. It applies when someone commits a certain kind of felony, in this case, robbery, and someone else dies during it. It doesn’t matter whether the death was intentional or accidental, it doesn’t matter who dies as a result, the defendant is liable for the death. In this case, the assailant was killed in self-defense, and the accomplice/defendant will be charged with their death.
Cleaning up and then . . .
SCD Member was working at Papa John’s restaurant in New Carlisle, OH. He was preparing for closing and was “bent over” mopping the floor when two masked assailants burst into the restaurant carrying weapons and screaming at the SCD Member and other employees present. The first assailant was wearing a red mask, the second assailant to enter was wearing a green mask.
The assailants quickly advanced on SCD Member with weapons raised while continuing to scream. When the first assailant wearing the red mask came to within about three feet of SCD Member, who is an Ohio CHL license holder, fearing for his life SCD Member drew his concealed firearm and immediately fired at the assailant, killing him. The accomplice wearing the green mask fled the scene on foot.
After speaking to the 911 operator, SCD Member immediately contacted the Second Call Defense, 24-Hour Emergency Member-only Hotline while he was being “detained” in the back of a New Carlisle Police Car and spoke with me for approximately one hour until he was transported from scene to Clark County Sheriff’s office. During our conversation, we practiced tactical breathing to help calm the SCD Member. The SCD Member recounted what had occurred during the incident to me several times, each time with a little more detail as the physical and psychological effects of the threatening encounter began to subside.
I spoke with the lead detective on the scene and advised him that my Client, would not be making any statements, or answer any questions until I was present. Once SCD Member was transported to and arrived at Clark County Sheriff’s Office, he was released to be interviewed later, and since there was still one assailant who fled the crime scene unaccounted for, SCD Member was driven home by New Carlisle Police for his own safety.
On June 21, 2021, I accompanied SCD Member to the Clark County Sheriff’s Office, whereupon SCD Member was interviewed and released. At the end of the interview where a Prosecutor was present, we were informed that SCD Member was not going to be charged for the homicide that occurred because of his use of lethal force in self-defense.
The Homicide Detective indicated to us that they were confident in the second assailant’s identity and that they would arrest him on charges of Felony Murder.
After talking with the SCD Member, the investigating Police Officers, and Detectives, listening to the 911 call, reading the statements of other Papa John’s employees present, what did I learn?
Time, or rather lack thereof, and immediate access to a firearm were the most important factors in the SCD Member’s survival. While talking with the SCD Member both immediately after the incident and the days that followed, one thing was certain…there was no time to ponder the question “should I use lethal force in self-defense?” There was no time, hesitation to make that determination, in this case, would have ended in the SCD Member’s death or serious injury.
First, the overall decision that you will use lethal force in self-defense or defense of others needs to be made long before the situation arises, and certainly before you start carrying a weapon for self-defense. Indecision is what leads to having your weapon used against you.
Second, before you use lethal force in self-defense, the facts of each encounter must be considered in a split second, often not decided upon, but reacted upon. In this case, while mopping the floor, the SCD Member barely had enough time to safely react to the masked assailant, rushing towards him, screaming with weapon raised overhead preparing to attack. The SCD Member barely had enough time to recognize the attack, draw his firearm, and shoot, saving his life and possibly the lives of his fellow employees. The “entire incident was over in a few seconds.”
What didn’t our fellow Second Call Defense Member have time for?
He didn’t have time to retrieve his firearm from the car, his backpack, briefcase, or other room. Carry your firearm on your person, the same location on your person, the same firearm. Sometimes you must “dress for defense,” your clothing dictates your firearm and choice of carry position but no matter what you carry, and where on your person you carry, it must be second nature for you to quickly access your firearm.
He didn’t have time to “rack” a round into the chamber, or God forbid insert a magazine into the pistol. Never, ever, ever, carry your firearm with an empty chamber. One, for safety concerns, you will never really know if it’s loaded or unloaded; two, under the stress of a threatening encounter you will not remember to “rack” a round into the chamber; three, if you do remember, you will not have time to “rack” the slide; four, if you do remember and you do have time, because of your bodies physical reaction to a threatening encounter, your fine motors skills will degrade to the point that you are physically incapable of “racking” the slide. If you’re not confident enough to carry your firearm loaded and ready to fire, then go out and obtain the training you need until you are.
- Take an NRA Basic Pistol Course, self-defense inside the home, self-defense outside of the home, or any other live-fire course.
- Then, practice!
He didn’t have time to call 911 for help, and he didn’t have time to wait for the police to arrive.
Our fellow Second Call Defense Member did have time to rely on himself, his training, and his preparedness.
Remember, being prepared doesn’t just happen, buying a firearm doesn’t make you prepared, any more than buying a hammer qualifies you to build a house. Obtain a firearm that “fits” and one that you can comfortably use, find the level of training that’s right for you, and practice until you are comfortable with your choice of arms, and then practice some more. As in this SCD Member incident, there may come a time that your life depends on it, and maybe the lives of others.
Read the attached media accounts related to this SCD Member incident.