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  • Writer's pictureBrad Parker

NY Man Shoots Robber; Goes to Jail

Should we be outraged or is there more to this self-defense story? What can we learn from this attack?

A man in Queens has been jailed and could be prosecuted after he shot and killed an attacker.

According to authorities, the incident took place at around 2 a.m. on Wednesday in a driveway on 82nd Avenue in Kew Gardens in Queens, New York City.

Police said the 32-year-old approached a citizen in an attempt to steal money and cigarettes while brandishing a sharp weapon.

The defender, Charles Foehner, 65, pulled out a silver revolver and shot the man up to five times.

In surveillance video viewed by Eyewitness News, the assailant confronts Foehner from 40 feet. Foehner waves him off, raising his left hand, but the assailant continues to approach aggressively. With that, Foehner draws his gun from 20 feet. When the assailant waves an object and lunges, Foehner fires from 8 feet.

He [Foehner] then called 911, stating he was in a shooting and the gun was in his jacket pocket. He voluntarily surrendered to responding officers.

The suspect was pronounced dead at the scene and a pen was discovered in his right hand.

The 65-year-old [Foehner] was charged with second-degree criminal possession of a weapon and criminal possession of a firearm, according to a spokesperson for the Queens District Attorney's Office.

NY Man shooters robber in self-defense but is jailed.
Screen shot from surveillance video which captured the crime. (Source: New York Post)

As defenders there are a number of contextual concepts to review for self-defense:

  • Am I in a good place? First of all, it's 2 a.m. Remember, nothing good happens after midnight and that's when the vampires come out. BUT, the story linked to above says Foehner lives right around the corner with his wife and is well liked by neighbors. Let's face it, we should be able to do whatever we want, whenever we want, and go wherever we want. We don't know what the defender's circumstances are in regards to him being out at two in the morning, but there is this natural antagonism between being able to be out as a free citizen or being prudent by avoiding troublesome areas and troublesome times. Just remember that it's easier to stay out of trouble than it is to get out of trouble. We can legally defend ourselves against attackers -- unless we are somewhere we should not be and doing things we should not do. The element of innocence is an important part of our claim of self-defense.

  • What's my state's laws regarding self-defense? Most states have "stand your ground" laws that do not require us to retreat if we are legally occupying that space. There are still states which require you to retreat before you defend yourself. Unfortunately, it appears that New York is one of those states. New York's "duty to retreat" requires that a person take reasonable precautions to lessen the risk of injury before engaging in self-defense, such as running away and calling the police. According to the responsibility to retreat principle, one should only use force as a last resort. We can still use force if we have a reasonable suspicion that the assailant is attempting or perpetrating a forcible rape, robbery, kidnapping, or forceful criminal sexual act. New York does not require a legal obligation to flee in one's own home. Complicated I know, but our actions will be scrutinized by the law. We should know what's expected of us so we can act reasonably within the law if the unthinkable happens.

  • I need to train for close quarters attacks. The attacker first approaches the defender from approximately 40 feet (13 yards) away according to the story. The defender tries to wave off the attacker with his left hand and it also seems reasonable that he vocalized something to warn off the attacker. The attacker approaches "aggressively" and the defender draws his revolver when the attacker is 20 feet (7 yards) away. When the assailant waves an object and lunges, Foehner fires from 8 feet. That's about 2 1/2 yards or just over two arm's length. Civilian shootings typically happen way closer than police shootings. Being able to shoot a fly's wings off at 25 paces might not be a transferrable skill for our self-defense. Expect situations which are dynamic, rapidly evolving, and extremely close. A gunfight is a race to the first relevant hit.

  • Watch his hands. The attacker here has an object that appears to be something like an ice pick or a screwdriver. Something that is deadly if he gets close enough to stab me with it. In this case, the story says the attacker lunged towards the defender with the weapon.

  • Have a plan for law-enforcement interaction. Our defender looks to have done a lot of things right by calling 911 and letting the police know he was in a shooting and that his firearm was safely stowed. We can't be surprised when the police arrive and we are treated like a suspect. Heck, everyone at the scene is usually considered a suspect by arriving cops. Follow all orders. Failure to do so is seen as resistance. Do not talk. Continuing to talk over the cops' directions is seen as resistance. Comply immediately. And keep your firearm holstered or covered until asked to surrender it. The last thing we need is getting accidentally shot by the cops.

  • Whose life am I saving right now? That's the top priority when in a potential lethal force situation. Someone's behavior is so horrible and dangerous at this very instant that I must use deadly force to stop him from hurting me or someone near me.

  • Shoot to change behavior, not to kill. We don't shoot someone to kill them. It is our last option we have to stopping their deadly attack. I'm not shooting him in the leg. I'm not shooting the knife out of his hand. I'm not shooting a warning shot. The attack is so dangerous that I must shoot him right now to stop him and make him quit. That means to the center mass of his body that is available to me right now. And I have to follow up as long as he continues his attack. This is my last option. Any other options have not worked up to this point or they would not have worked.

  • But, it was just a pen, right? Uh-oh. The story says the suspect was pronounced dead at the scene and a pen was discovered in his right hand. Remember, earlier in the story, the surveillance tape indicated the attacker waves an object and lunges. My right to self-defense is not negated just because you tried to stab me with a pen instead of a screwdriver. It would seem reasonable that most of us think the bad guy has a weapon in his hand when he is attempting to rob me at 2 a.m., in a dark alley, with a pointed object in his hand, as he is aggressively coming toward me -- even after I pull out a handgun. Most reasonable people would agree that someone coming towards me, waving an object and lunging at me is trying to stab me. This attacker's actions are consistent with what a person who is trying to stab me would do. I should not be penalized because the weapon turned out to be a pen. Remember bad guys get arrested and even shot for threatening people with toy guns. We as defenders don't know the difference because the attacker is deliberately trying to use the object to simulate a weapon. They want us to comply through our fear of being hurt or killed. They want us to believe it's a weapon.

  • We may be charged with a crime, even though we are the victim. The 65-year-old was charged with second-degree criminal possession of a weapon and criminal possession of a firearm, according to a spokesperson for the Queens District Attorney's Office. Wait, the story says, Sources say he has an active NYPD firearms permit. How is the defender being charged? First, it's New York City. This is where Manhattan District Attorney Alvin Bragg charged Jose Alba, a bodega worker, with second degree murder after Alba defended himself against an attack in the store. Sometime we might be arrested as the investigation is being concluded. Sometimes we might be arrested to provide optics supporting a politician or to provide cover for a narrative. Remember, Kyle Rittenhouse was pilloried as a racist, white nationalist, and a terrorist for using an AR-15 to defend himself.

  • We may be charged with a crime because we were committing some other crime. On a totally different level, perhaps our defender in this story might not be the person we think he is. Perhaps he does not have an active firearms permit. Perhaps he is doing something at 2 a.m. he should not have been doing. We can only claim self-defense to explain why we were forced to take someone's life if we are innocent of wrongdoing to start with. Self-defense is intended to allow an innocent person to defend themselves against an unlawful act of aggression. It is not intended to allow an unlawful act of aggression against an innocent person. Innocence can be lost by initiating the aggression, being the first to threaten to use unlawful force, and engaging in mutual combat.

  • It's not the arrow, it's the archer. A revolver? What is this, Starsky and Hutch? While some people contend that revolvers are obsolete, Fohner proved in this case that the wheelgun still can be used to good effect in deadly force self-defense situations. It's noted that he fired five shots during the engagement. Depending on the model and the caliber of his handgun, five shots may have been the maximum amount in the cylinder. Yet, he prevailed in the fight. We need to remember that tactics trump skills and skills trump equipment. Train hard, train realistically, and train often.

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