In January of 2024 I wrote The Houston taqueria shooting: reason or emotion? It was the story of Eric Eugene Washington who robbed the customers of a restaurant at gunpoint and was shot to death by one of his victims. It was only later that his victims, and the police, realized Washington was wielding a replica handgun.
If you successfully defend yourself against a criminal threatening you with a replica, non-firing gun, are you in trouble?
Graphic: A genuine Glock 17 or a replica? Author.
Replica handguns are common. They’re virtually identical to the real thing, and while some come with orange or red plastic rings on the muzzles, those are easily removed, which any criminal would certainly do. While people familiar with contemporary handguns might, given enough time and the opportunity to handle a replica, recognize it as such it’s unlikely they could make a positive identification of one of them being waved about in a manner consistent with an imminent deadly threat. People unfamiliar with guns certainly couldn’t.
Keep in mind I’m not a lawyer. I’m not providing legal advice, merely general knowledge gained during a police career and continual research, study and teaching thereafter. You’re solely responsible for knowing the law where you live and travel.
That said, the universal standard for the use of deadly force is reasonably plain. You may lawfully use deadly force if a reasonable person would believe they are facing an imminent threat of serious bodily harm or death to self or another. Notice the “reasonable person” standard, and the imminence requirement. The threat can’t be a future threat nor a non-serious threat. It must be about to happen or already happening.
It doesn’t mean you have to let a deadly attacker get in the first shot, blow or stab/slash. That’s what “imminent” is all about. If a reasonable person in like—not exactly the same—circumstances would believe if they didn’t immediately act they or another would suffer serious bodily injury or death, deadly force is lawful.
Never think, or say, you shot to kill. You shoot only because of the imminent threat, and you shoot to stop, not to kill. When the threat is stopped, you stop. If the unlawful attacker dies that’s their fault. It’s not nit-picking. “Kill” in any language inflames the emotions. “Stop” merely means to come to a halt, to cease any course of action. By which standard would you want a judge or jury to decide your case? Emotion or simple logic?
But what it if later turns out the attacker’s gun was plastic, a non-firing replica? Did you just shoot an innocent person?
So long as you, a reasonable person, believed you or another was in imminent threat of serious bodily injury or death, it makes no difference if the gun was later discovered to be incapable of carrying out that imminent threat. It should make no difference. Even with a real gun, how can you tell, at a glance, it's loaded or unloaded?
That’s where other factors enter. If your deadly force encounter took place in a blue state or city, you might be in trouble. If you’re white and the attacker was a member of a currently favored “oppressed” group, you might be in trouble. The same might be true if your attacker was trans, gay--a member of a currently favored oppressed sexual identity group—or an illegal immigrant. You might be in trouble in a blue state/city simply because those in power hate guns and those who own and use them.
While Houston is arguably not as socialist as Austin, both are islands of blue in a sea of Texas red. If the only determining factors in the Houston case were the law and the facts it should have taken prosecutors a matter of weeks, a few months at most, to decide the victim acted lawfully. There were multiple witnesses/victims. Police and prosecutors had surveillance video to review in slow motion as often as they pleased. But the victim was white and the robber was black, so it took Houston prosecutors a year to clear the victim, a year during which a murder charge hovered over him.
Why did that happen? Houston had a Soros prosecutor, an extreme leftist, anti-law enforcement, pro-criminal idealogue. Just because the law says you acted legally doesn’t mean a prosecutor will care about the law if there is political advantage in prosecuting you.
That’s why armed citizens need self-defense insurance. Even a cheap, non-specialized lawyer charges $300 per hour. For my wife and me, U.S. Law Shield costs a bit over $300 per year. If you’ve been forced to defend yourself, call your self-defense lawyer immediately, shut up, and take their advice.
It should go without saying that avoiding any confrontation is the smart thing. Sadly, that’s not always possible.
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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. He is a published author and blogger. His home blog is Stately McDaniel Manor.