When I Can’t Use Deadly Force

By Joel Persinger

Every so often some otherwise law-abiding individual does something incredibly stupid.  I’m going to use this article and the video that accompanies it to address just such a case.  Here are the basics.

Back in February of this year (2022) a 41-year-old Houston man and his wife were robbed at gun point at an ATM at about 9:45PM.  Apparently, they had completed their ATM transaction and were sitting in their vehicle at the time of the robbery.  The robbery victim’s name is Tony Earls.  Mr. Earls was legally carrying a concealed weapon at the time.   As the suspect fled on foot, Mr. Earls decided to get out of his truck and try to stop the robber from getting away.  Rather than chase the robber on foot or simply return to his vehicle and call 911, Mr. Earls shot at the fleeing robber in the direction of a busy street.  At this point in the story the robber is no longer posing a threat to Mr. and Mrs. Earls.  So, let’s pause here for just a moment.

What I’m about to state is not at all optional.  You MAY NOT shoot at a fleeing suspect unless that individual is presenting an immediate threat of death or great bodily harm as he flees.  In plain English, if he’s not trying to kill you or somebody else, you cannot use deadly force to stop him from getting away.  Even law enforcement officers are limited in this respect.  Under Tennessee v. Garner, the U.S. Supreme Court held that deadly force used by police in such an instance would be justified only if:

“it is necessary to prevent the escape AND the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

I should also clarify that the use of deadly force in defense of self or others is justifiable ONLY when you reasonably believe that you are in imminent danger of being killed or seriously injured.  Additionally, the level of force you use cannot exceed the level of threat you are facing at the time.

In the case of Mr. Earls, the threat against his wife and him was no longer present at the time that he fired shots at the fleeing robber.  Therefore, he was not justified in using deadly force at that time.  Now let’s continue with the story.

For some reason that has not yet been explained in the news, Mr. Earls lost sight of the robber as he was trying to escape.  Mr. Earls came to believe that the robber had gotten into a pickup truck that was passing by on the road.  Unfortunately, Mr. Earls was wrong.  The pickup truck was carrying a family of five who just happened to be driving by.  Even so, Mr. Earls shot at the truck, having no idea who was inside.  Tragically, one of Earls’ bullets struck and killed 9-year-old Arlene Alvarez, who was simply on the way to dinner at her favorite restaurant with her family.

The attorney for Mr. Earls, (Mr. Dunn), has since held a press conference and offered Mr. Earls’ story of events, as follows:

“Earls got out of the car to retrieve the keys, and that’s when the robber pulled a gun and fired one shot at him. Dunn said his client returned fire, and as he was doing so, a vehicle was driving by slowly. Earls thought the vehicle was part of a group that had just robbed them and got back into his car,” according to his attorney.

Dunn said his client got back into the car, and at that point, the vehicle he had noticed began to back up slowly. That’s when he said Earls got back out of his car and fired two shots at the vehicle, striking Arlene.”

Unfortunately for Mr. Earls, his story doesn’t appear to provide any greater justification for his actions than the account I detailed previously.  Regardless of which account you choose to accept, the fact remains that Mr. Earls made some very foolish and irresponsible decisions.

At this point it might be instructive to review the Practical Defense Systems rules of gun safety before I continue.  Here they are.

  1. Always treat all guns as if they are loaded.
  2. Always keep the gun pointed in the safest possible direction.
  3. Always keep your finger off the trigger until you are ready to shoot.
  4. Always know your target, what is beyond it, and what may pass between you and it.

Mr. Earls violated these rules.  Most notably, he violated rule number four, “Always know your target, what is beyond it, and what may pass between you and it.”  As I mentioned above, Mr. Earls apparently began shooting at the fleeing robber in the general direction of a busy road on which vehicles were traveling.  This seems to be the case regardless of which narrative you wish to believe.  As far as I can determine, Mr. Earls did not manage to hit the robber.  That means that Mr. Earls’ bullet or bullets continued traveling toward the road and any vehicles traveling there.  This does not qualify as knowing your target and what is beyond it.

Having shot at the robber and failed to hit him, Mr. Earls decided to shoot at a passing pickup truck, thinking the robber or the robber’s accomplices MIGHT be inside it.  This does not qualify as knowing your target.  As a consequence of violating this rule, Mr. Earls took the life of an innocent child, destroyed an innocent family, and ruined his own life and the lives of his loved ones.

It’s a tragic story that neither you nor I can go back in time and fix.  Still, we can learn from this deadly force case.  If you have a gun or carry a gun for self-defense, you have the means with which to destroy life. That comes with responsibility. That is why training in the proper, legal, and ethical use of that firearm is vitally important.  Just like Mr. Earls, you will be held responsible for every round you fire from the moment it leaves the muzzle of the gun until it stops and any damage it does along the way.  Learn the lessons from this tragic event.  Learn them well and never repeat them.

Read the news story: https://www.newsmax.com/newsfront/girl-shot-houston/2022/02/16/id/1057045/

Watch the video on YouTube: https://youtu.be/YnWy5gfruxk