Decision-making in the Kimball shooting

I am 62 and not nearly as strong as I once was. So long as he is only shouting, that’s where it will stay. Touch [me], I’m too old to fight. I will shoot.

An Internet Common Tater

Merrill “Mike” Kimball encountered one of the worst Negative Outcomes, being convicted of murder. Leon Kelley experienced the worst of them all, getting killed.

There are a number of items relating to decision-making, both during the confrontation and preceding it, that bear discussion in this case. Decisions are often made based on attitude and feelings, rather than facts. Most gun control arguments are rooted in feelings and we gunowners belittle anti-gunners for that. However, don’t think that the same reliance on fact rather than feeling can’t come back to haunt us in the courtroom.

An aspect of the Kimball shooting that I find interesting is that the ‘disparity of force’ aspect swayed the jury not at all. Leon Kelly was half a foot taller and outweighed Merrill Kimball by over 100 pounds but the jury didn’t care. The above Common Tater has the same attitude Mike Kimball displayed on October 6, 2013. Unfortunately, the jury didn’t see it that as a justification. A fear of serious bodily injury has to be seen as ‘reasonable.’ As a Maine defense attorney wrote on his blog

note the use of the word ‘reasonably’ [in the Maine statute]. Whimsical or irrational beliefs attributed to the defendant do not suffice.

Just because some of us are older (I’m 60) doesn’t mean we can think every assault is cause to respond with deadly force. This is why I tell every Defensive Pistol class I teach:

Failure to have an Intermediate Force option implies that all you are willing to do to protect yourself and your family is kill someone. That’s not a position I care to put myself in, nor should any rational adult.

For now, I’m not going to address the wisdom of even going to the scene of the confrontation, all things considered. However, if Mr. Kimball had carried a can of pepper spray with him, he probably wouldn’t be facing the probability of spending the rest of his life behind bars. I hear many objections to carrying pepper spray. Without exception, they are foolish, yet speciously alluring. As the prosecutor commented about the Kimball case:

People have a right to carry firearms, but the law only provides for use of firearms in defense in very limited and particular circumstances, and this was not one of them.

I would much rather carry a can of pepper spray than a spare magazine or a defensive knife. The chances you will need a spare magazine are infinitesimal. The reasons I hear for carrying a spare magazine tend to be:

  • Carrying an extra implies you know what you’re doing.
  • That you know that most semi-auto malfunctions are mag-related.
  • That you know to top off after the fight.
  • That you know that 6 rounds of .380 isn’t that much.
  • That there might be another adversary.

The chances you will need a non-lethal response to an ugly situation are much higher than any of those reasons. Being shoved, even repeatedly, is not sufficient legal provocation for a killing. Even if it was, do you want to kill someone in front of your wife and son, as Mr. Kimball did, unless it’s absolutely necessary? But if all you have is a hammer, everything looks like a nail.

Ponder the implications the next time you strap on your heater.

Cells in Alcatraz prison, San Francisco, California Author William Warby from London, England

Cells in Alcatraz prison, San Francisco, California
Author William Warby from London, England

30 responses

  1. Reblogged this on Growing Up Guns and commented:
    A second article about decision making and the use of deadly force.

  2. You may use deadly force in response to a threat of “grave bodily injury” not only threats of death. Here in CA it seems to depend on the DA. Some cases that are clear cut self defense, are prosecuted as murder.

  3. I rarely wear a jacket unless weather requires it. I keep a flashlight, as both a light and impact weapon, in a rear pocket alongside my wallet; a J-frame in one front pocket, a pocket knife in right rear pocket, and keys in left front. I’m running out of places to put things. I don’t discount the viability of OC, but have no place to put it without sacrificing something, and sitting on a can of OC sounds uncomfortable. I have a desk job in an NPE. Suggestions?

    1. I have a Spitfire unit from Sabre on my keychain.

      1. Thanks; I’ll find one.

  4. Escape, evade, avoid. The best way to win the fight is to not get into one. Kimball made the choice to get involved. Even without knowing the minute details of the drama it sounds as if this was all over a few pounds of honey. What is your life worth?

  5. Bravo sir, very, very well stated.

  6. I’m not sure that a jury that chose to disregard the well documented disparity of force aspect would be swayed by you carrying another intermediate. If they won’t consider one established factor in use of force decision making, why would we assume that a second factor is the magic talisman? Going before a jury is always a crapshoot.

    1. I think if Kimball had given Kelley a good dose of an unpleasant chemical instead of shooting him, things would have turned out quite differently.

  7. Ypu give up your right to defend your honor when you strap on a gun.

  8. I agree with carrying OC and now make it SOP to do so. But does Califonia have a Stand Your Ground law and would that have made a difference in the verdict? When I took the ECQC course I learned firsthand how quickly the situation could move from someone pushing me to a situation where they could overpower me to the point I would not be able to effectively deploy my weapon, whether OC or firmearm. Sometimes it is a very fine line.

    1. I can’t comment on California law but this is another case I have started following to see what the outcome is.

  9. 20/20 hindsight makes us all geniuses; but try being in Kimball’s shoes having to make a split second decision to save your life while both you and your family are being assaulted.

    1. The ‘split second decision’ was actually a later decision in a series of decisions. That’s why I refer to a decision process. Kimball’s decision process started quite a bit earlier when he made the decision to go to a probable confrontation over property while carrying a gun as his only defensive tool and after he had been drinking. Like many bad decisions, that created a cascading series of bad decisions culminating in his having to spend the rest of his life in prison.

      Any time that we decide to leave our home and go to a confrontation, that’s an iffy decision. Deciding to do it under circumstances of impairment, e.g., alcohol, that’s a bad decision.

      One of the factors that led to his initial bad decision was the idea that guns are the general purpose tool for dealing with any and all attacks. Unfortunately, this attitude is fostered and reinforced by Common Taters like the one I referenced at the beginning of the post. Failing to take into account obvious factors, such as the law, tends to be the start of bad decision making. And that starts to occur a long time, in many cases, years, before the confrontation.

  10. You say “I find interesting is that the ‘disparity of force’ aspect swayed the jury not at all” yet you comment elsewhere on ‘reasonableness’.

    As you know this is an indispensable element of a self-defense defense. It does not matter if there was disparity of force in the absence of a reasonable belief he was at risk for serious bodily harm.

    All elements of the defense must be present.

    1. Absolutely true. The absence of reasonableness rendered the disparity of force issue moot.

  11. Tactical professor, your last sentence said it all, “If all you have is a hammer, everything looks like a nail.” If you only have a gun, then the solution is to use it. It was a lousy option in this instance.

  12. Spot on, as usual, Professor. Too often people have the mistaken belief that simply uttering the phrase “I was in fear for my life” is some kind of magical get-out-of-jail-free card.

    I also carry the Sabre Red Spitfire everywhere I go. I keep mine on a 10″ lanyard attached to my belt and tucked into my weak-side pocket. All I have to do is grab the lanyard, and the little canister comes right to hand without having to fish around for it. It can be deployed in this manner “from the hip” if necessary, or it is also designed to be pulled free from its key ring with one smart tug.

    Having some kind of force continuum available is vital. I too, being 56 and having had two major surgeries in the last 4 years, no longer feel as young as I used to. But I work out 5 days a week (I can still deadlift twice my body weight) and practice BJJ once a week. This doesn’t make me anywhere near invincible or even a tiny bit BA, but it does give me confidence. And confidence is what you need to deploy the most effective self-defense tools available–your brain and your vocal cords. I can’t count how many physical confrontations I have avoided by effectively using those tools. And you always have them with you.

  13. Very realistic and well-informed view on the true nature and necessity for deadly force– good to know and to keep in mind in all situations.

  14. Late to the commentary. I think I understand what you’re saying about having pepper spray, Mr. Werner. But I’d like to clarify. Doy ou mean that if there were a gradual (and let’s hypothetically say unavoidable) escalation of force, the jury may have been more lenient– that Mr. Kimball had been exercising some degree of restraint?

    1. Good question.

      My opinion is that the situation would have ended if Kimball had carried a can of OC with him and painted the guy orange the first time he was pushed. Contrary to what many Internet common taters like to think, the legal threshold for giving someone a dose of spray is pretty low. Any threatening physical contact qualifies. But if you don’t have OC, you can’t use it.

  15. Pepper spray is equally adept at disabling the user as the agressor. If your going to use it get the gel type.

    1. Assuming you have distance in the equation, I think gels have their advantages. I also keep one in my car to minimize cross-contamination of the vehicle itself. However, insider personal space (1.5-4 feet), I feel they’re not as good an option as a cone.

  16. Bookmarked as a reminder of how the other side thinks.

    1. Could you clarify that a bit?

  17. I guess you had to be there in the heat of the battle rather than sitting at home with the luxury of taking your time in making ingenuous 20/20 hindsight analysis I hate to spoil all the hypothesis with facts. But here were no alternatives…unless you include death.

    1. Would you mind sharing your first hand perspective and what’s different from what you witnessed vs what’s in the article?

  18. Reblogged this on Women and Guns and commented:
    I couldn’t agree more. Pepper Spray is also more affordable than an extra loaded magazine. And weighs less, is easier to conceal, (if you feel you need to).

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