On January 5, 2023 an armed robbery occurred in a Taqueria in Houston, TX. The robber, 30-year-old Eric Eugene Washington, picked the wrong taco stand and ended up seriously dead when a legally armed customer ended the robbery, shooting Washington nine times.

Shooting Washington was legally justified under Texas law. Generally, one lawfully uses deadly force when a reasonable person in like circumstances would believe they, or another, is facing the imminent threat of serious bodily injury or death. There are several legal elements to consider. I’ve understood elements like these under a variety of terms, including some taught by the FBI, for decades, but I’m using the terms the current American self-defense guru, attorney Andrew Branca, employs. 

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Innocence: in this case, the 46-year-old citizen who shot Washington—he has never been identified—was innocent. He was not the initial aggressor, and had no argument with Washington.

Avoidance: that doesn’t apply under Texas law, but where it does apply, was the victim doing what he reasonably could to avoid conflict? In this case he was. He was eating, and a gun was stuck in his face by the robber, who robbed him and the other customers present. States with “stand your ground” or “castle doctrine” laws don’t generally require avoidance.

Imminence: a reasonable person must believe the threat to be imminent, happening within seconds, or already happening. The entire robbery, from entrance to shooting, took a handful of seconds.  

Proportionality: harsh words can’t be answered by gunfire. In this case, apparent deadly force was met with lawful deadly force.

Reasonableness: would a reasonable person in like circumstances believe deadly force was reasonable?  

The law would seem to be clear. Washington was in the process of committing an armed robbery. He robbed everyone in the store, and was heading for the door, his back to the shooter, when he was shot. But there is the law, and there are emotions. Washington was black, the victim was not. Emotions immediately kicked in.

Emotion: It turned out the gun was a plastic, 1:1 replica of a real handgun. The victim shot Washington in the back, and shot him several times after he had fallen to the floor. The victim shot Washington nine times.

The story has a just ending. A grand jury no-billed—no charges—the victim, but it could easily have gone the other way. We can reasonably assume the prosecutor presented a factual, legal case rather than an emotional, politicized case. The old saying that a prosecutor can get a grand jury to indict a ham sandwich is entirely true. A grand jury hears only what the prosecutor wants them to hear. No defense attorneys--no defense case--are allowed.

But what about the plastic gun? The standard is whether a reasonable person would have believed they were facing an imminent threat of serious bodily injury or death. The gun was a replica, but looked like the real thing, particularly when it was being pointed at everyone in the Taqueria. It’s unreasonable to think people under that kind of stress can differentiate between a replica and the real thing, particularly when the robber is acting like it’s the real thing.

He shot him in the back!  Washington was leaving! Was he? The robbery took seconds. Washington was hyped up, erratic, threatening everyone, individually, but in no particular order. He was pointing his gun at a customer seated near the door when shot. Could a reasonable person have believed he might turn and eliminate every witness? Of course they could. If one is legally justified in shooting, they don’t have to wait for an old-west, high noon showdown. They’re entitled to take every advantage.

He shot him nine times! If one is justified in shooting, the number of rounds fired is legally irrelevant. One shoots to stop, to end the threat, not to kill. If an armed robber dies as a result of being shot, he shouldn’t have forced that choice on his victim.

This is the most troublesome of the emotional elements. Nine times!  He shot him nine times! He shot him when he was down! The problem is handgun ammunition just isn’t very powerful. More than 80% of people shot with handgun rounds do not die. There are many cases where criminals have absorbed ridiculous numbers of bullets and continued their murderous rampages, even though they were mortally wounded. There is no way for the reasonable man or woman to know how an attacker will respond to being shot, so the reasonable person shoots until the threat ends, then immediately stops shooting.

The victim was lucky it happened in Texas. Were he in California or another blue state, he’d likely be behind bars regardless of the law. The ultimate lesson: if at all possible, avoid any kind of confrontation, deadly or not.

Mike McDaniel is a USAF veteran, classically trained musician, Japanese and European fencer, life-long athlete, firearm instructor, retired police officer and high school and college English teacher. His home blog is Stately McDaniel Manor.