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