Deadly Force

The Court of Appeals has held that “the amount of force that is necessary to prevent the infliction of great personal injury may vary with the number of persons the defendant reasonably believes are about to commence striking him with their fists.”

State v. Irons, 101 Wn. App. 544, 558, 4 P.3d 174 (2000).

On November 14, 2022, the Whatcom County Superior Court found Kamuran Chabuk not guilty of a 2nd Degree Assault charge nine years after a self-defense shooting in Bellingham. The Law Office of Mark Knapp PLLC obtained an acquittal after a bench trial before Hon. Judge David E. Freeman.

The case presented some critical factual issues including the presence of multiple aggressors, disparity in the size of the so-called victim, and the potential for a concerted attempt on the part of at least two aggressors to take away the Defendant’s gun and use it against him.

The aggressor survived the shooting. Nevertheless, the language in WPIC 16.02 provides a template for self-defense cases in which there are multiple aggressors or a group that seems to be acting in concert. The appearance of a threat by one member of the group might justify use of force against other members of the group, depending on the circumstances as they reasonably appeared to the defendant at the time.

WPIC 16.02 Justifiable Homicide—Defense of Self and Others 

Multiple assailants. There is no requirement that the defendant’s fear be caused by only the person slain. His self-defense is lawful if based on reasonable fear of imminent harm from either the person slain, or others whom the defendant also reasonably feared. State v. Harris, 122 Wn.App. 547, 90 P.3d 1133 (2004); State v. Irons, 101 Wn.App. 544, 550, 4 P.3d 174 (2000).

After a jury convicted Kamuran Chabuk of 2nd Degree Assault at his first trial in 2015, the judge ruled that prosecutorial misconduct required a new trial. The State appealed and, in 2019, the Washington Court of Appeals, Division One upheld Judge Ira Uhrig’s decision to take the verdict away from the jury. Whatcom County’s Chief Prosecutor for 44 years, Dave McEachran, had stated at trial that Chabuk had an absolute duty to announce that he had a gun. He also implied that Chabuk provoked the pursuit by videotaping Kiener and his friends and that Chabuk had a duty to retreat.

In the first trial in 2015, the State made a deal not to call its expert witness to testify about use of lethal force if the defense would agree not to call Bob Smith, retained by the defense to analyze issues such as disparity of force. In the 2022 trial, Smith was instrumental in explaining to the Court why Chabuk had no reasonable alternatives—based on all the circumstances known to him—despite the fact that Kiener might have been unarmed.

Judge Freeman’s verdict, delivered November 14, 2022, is based on a number of findings. However, Bob Smith’s expert witness testimony was critical to obtaining a Not Guilty verdict. Bob is a certified police firearms instructor, retired firefighter paramedic and expert in use of force for law enforcement and non-LEO armed civilians. Like many such experts, he has gone through extensive training with Massad Ayoob.

Washington State has a dual standard for use of force that provides armed civilians more use of force under some circumstances than is afforded to law enforcement.

He relayed to defense counsel his concern of possible bias on the part of police investigators in this case. During his deposition for the Prosecutor’s office, he was describing pre-assaultive behavioral cues that commonly precede an actual physical attack when he was interrupted by the lead detective, “But he hadn’t hit him yet, had he Mr. Smith?” Mr. Smith replied, “Detective, you’ve obviously been a cop for a while. Before you allow yourself to be struck, cut, or shot, do you not effect some form of a counter?” Bob then waited for an answer over 30 seconds with no answer before he replied, “No, I didn’t think so.”

Mr. Smith had previously experienced similar bias in another self-defense case where the lead detective in that case stated on the witness stand that they had looked for evidence that supported what they believed had happened. As we know, evidence and not beliefs are what hold sway in court.

The State had an expert ready to testify who only seems to work with law enforcement and prosecutors on the use of force. His written reports indicated that he does not recognize that LEOs have tools and training for dealing with threats at less lethal level than most armed civilians. The prosecutor, Erik Sigmar could anticipate that, had their expert witness been called, he might have been forced to underscore much of what Mr. Smith had already stated pertaining to why Chabuk reasonably feared for his life and the life of his girlfriend. No police officer would have let an aggressive individual get close enough to grab his or her pistol.

Police are trained to use tasers, pepper spray and batons to counter aggressive individuals. Nevertheless, once the gun comes out of the holster, a different dynamic sets in because of the imminent risk posed when a potential assailant or assailants keep closing the distance despite the display of a weapon. Had Kamuran loudly announced, “Stop! I have a gun and I will shoot you!” he might have stopped the forward motion of his two pursuers without the necessity of firing a shot. On the other hand, given the state of intoxication that both men indicated by their testimony at both trials in 2015 and November, 2022, such a command might have escalated the assault. Mr. Chabuk was doing everything he knew to deescalate the situation.                 

Kamuran Daniel Chabuk was a graduate student at Western Washington University and worked as a teaching assistant in the mathematics department. Chabuk had a permit to carry a handgun that he also used for target practice.

On Saturday, May 11, 2013, it was after dark when Chabuk and his girlfriend, Danielle Shook, were walking their dog and shortly afterward heard a muffled cry or shout in their neighborhood. They went to see whether anyone was in trouble. Thirty-year-old Joshua Kiener and his friends Todd Buckley and Kyle Walker had met in Bellingham and spent the day consuming alcoholic beverages and all three were highly intoxicated. It quickly became clear to Chabuk that “they were just drunk, that no one was actually hurt.”

As Chabuk and Shook started walking away, Chabuk heard footsteps behind him. Chabuk turned around and saw Josh Kiener, following him, with Walker close by. Kiener is 6 feet 5 inches tall and weighed between 200 and 215 pounds. Chabuk was 5 feet 10 inches tall and weighed approximately 155 pounds. Kiener began aggressively harassing Chabuk by questioning him about why he was doing something suspicious to Buckley’s car.

At trial, Kiener admitted that his blood alcohol was extremely high. All the evidence unequivocally corroborates this fact. Thirty minutes after arriving at the hospital, Kiener’s blood alcohol concentration was at least .25, more than three times the legal limit for DUI!

During the encounter, Shook shouted “he has a gun,” which was supported by both the state’s and the defense witnesses.

Chabuk began recording on his cell phone, and two cell phone videos record the beginning and the end of the above referenced train of events. There is a significant gap in between the two videos. Nevertheless, the second video catches much of what occurred right before and while Chabuk fired three rounds at Kiener and the contents of the recording became undisputed facts in the case. The fact that Kiener kept pressing forward caused Mr. Chabuk to believe he had missed when actually he had shot Mr. Kiener three times!

Chabuk continued to walk backwards and enter the stairway leading to his unit of the duplex. Chabuk warned Kiener to “back off.” But Kiener and Walker continued to confront and pursue him. Chabuk asked Kiener, “Do you think the police would be interested in this video?” Kiener said, “I don’t give a fuck what the police or you think.” As he continued retreating, Chabuk pulled the gun out of the holster. Kiener said, “‘Come on, take your flashlight out. What, are you going to taze me with that? I see you fucking holding that thing.”

After Kiener and Walker refused to leave, Chabuk called out for someone to call 911 “right now.” After Chabuk yelled for someone to call 911, Kiener and Walker moved even more quickly toward him. Kiener, accompanied by Walker, rapidly closed the short distance between himself and Chabuk. One or two more of Kiener’s friends were also in the vicinity.

Chabuk fired his gun and yelled, “Back off.” Kiener said, “Fuck you” as he moved toward Chabuk and Chabuk said again, louder, “Back off!” The video shows Kiener advance further toward Chabuk and say, “You fucking derelict, fuck you.” After Chabuk fired the third shot, Kiener stopped. Chabuk then looked for Danielle who had run away before the shooting started. Then he called 911. Josh Kiener was taken to the hospital and survived with some serious medical issues.

In 2015, the State charged Chabuk with assault in the first degree of Kiener while armed with a firearm. Chabuk asserted he acted in self-defense. The first two-week jury trial began on November 9, 2015. The State called several witnesses to testify in the 2015 trial, including Kiener, Walker, Buckley, and Bellingham Police Officer Richard Schwallie. The court admitted more than 100 exhibits into evidence, including the two cell phone videos and the 911 calls.

Multiple attackers. In State v. Irons, the Court of Appeals noted that “the amount of force that is necessary to prevent the infliction of great personal injury may vary with the number of persons the defendant reasonably believes are about to commence striking him with their fists.” State v. Irons, 101 Wn. App. 544, 558, 4 P.3d 174 (2000). In the Chabuk case, two or more of the potential assailants were so drunk at the time they assaulted Chabuk that they did not even know when Kiener had been shot until Chabuk fired three times. Notwithstanding the absence of recollection on the assailants’ part, the risk of assault was made more imminently dangerous by the presence of two or more potential assailants acting in concert against the Defendant.

Chabuk possessed a reasonable belief that one or more of the assailants would have grabbed his weapon had the two of them been able to close the gap between themselves and Chabuk.

The most relevant question is whether the trier-of-fact, in assessing the objective reasonableness of the defendant’s conduct, ought to consider whether the defendant used reasonable force based on all the circumstances known to him at that time. The analysis must include the fact that he or she was faced with multiple assailants or potential assailants who reasonably appeared to him to have been acting in concert with the victim.

Deadly force is justifiable in the lawful defense of the slayer when there is reasonable ground to apprehend a “design on the part of the person slain to commit a felony or to do some great personal injury to the slayer . . . and there is imminent danger of such design being accomplished.”

See Irons.

The imminence of the danger of such design being accomplished increases with the number of persons sharing the plan or purpose of the attack. Mr. Chabuk reasonably believed that two or more pursuers were acting in concert with Mr. Kiener with the opportunity, ability and verbal, as well as physical, threats, to inflict great personal injury to the Defendant.

The defense filed a Knapstad motion and argued that there were no material facts in dispute and that the case should be dismissed. 

Under Knapstad, a defendant may make a pretrial motion to dismiss a charge and challenge the State’s ability to prove all of the elements of the crime. The trial court has the inherent power to dismiss a charge when the undisputed facts are insufficient to support a finding of guilt. Knapstad, 107 Wn.2d at 351. The court must decide “whether the facts which the State relies upon, as a matter of law, establish a prima facie case of guilt.” Knapstad, 107 Wn.2d at 356-57. We review de novo a trial court’s dismissal of a criminal charge under Knapstad.

See State v. Conte, 159 Wn.2d 797, 803, 154 P.3d 194 (2007).   

State v. Montano, 169 Wn.2d 872, 876, 239 P.3d 360 (2010).  

“Detached reflection cannot be demanded in the presence of an uplifted knife.”

Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961, 18 A.L.R. 1276 (1921).

Stay tuned and check the link to the 2019 Court of Appeals Decision for more details. This article is a work in progress. See also Assault & Display of Weapon

https://firearmslawyer.net/2021/10/24/self-defense-display-weapon-intent-intimidate/