Wrong weapon: the Der/Kifer incident - The Ayoob Files
American Handgunner, Sept-Oct, 2003 by Massad Ayoob
Situation: The intruder snarls, "I'm going to kill you." Believing you and your partner are going to be shot, you perform the indicated response. Next thing you know, you're on trial for Murder.
Lesson: It's the reasonable perception that counts. Conceal nothing from your attorney, understand the law, and know "the truth will set you free."
June 30, 2001, about 9:30 PM. The big, dilapidated building at 1301 North Wolfe Street in East Baltimore is surrounded by urban blight. Heroin syringes and beer bottles alike litter the filthy alley alongside the building, and even the sidewalk in front. The building is owned by Lum Der, a Chinese immigrant who followed the American Dream and found it with hard work. The top half of the structure houses Lum's wholesale restaurant supply business. The bottom half is occupied by Abacus Refinishing, a partnership that has been run for the last six years by Lum's son Kenny and his partner, Darrell Kifer, both 35.
The place has been haunted by repeated burglaries, sometimes daily. There's been one just today. Someone smashed through a bricked-up second floor window and took a pile of restaurant supplies. Darrell and Kenny had to spend the afternoon repairing the giant hole in the wall. Now, delayed by that and working late, they're finally finishing their project of the day; repairing a huge wooden bar top from a local tavern. Lights are on downstairs. Industrial fans are blowing to clear glue and varnish fumes and also to dissipate the brutal summer heat. It's obvious to anyone outside that the building is occupied.
They both hear a crash from upstairs.
With a sigh, work is set aside. Perhaps something just fell over, but they have to check. Because of the recent burglaries, and because this is a neighborhood where there have been murders, each brings a gun to work. Kenny is one of the relatively few citizens in Baltimore licensed to carry concealed, and he is wearing a Heckler and Koch US? Compact .45 auto, in a nylon holster on his right hip, with a spare magazine in front of the scabbard. Darrell retrieves the Mossberg 500 shotgun he brings to work daily in a case and keeps loaded there, with eight shells in the full-length magazine under its 20" barrel and a ninth in the firing chamber. All nine are Winchester Low Recoil CO buckshot. Kenny's pistol is also fully loaded with nine rounds, all Cor-Bon 185 grain +P JHP. They don't really think they're going to find an intruder; they never have before. They're just checking for peace of mind. As they go up the narrow staircase that leads to the second floor, Kenny's pistol is still holstered and Darrell's sho tgun is casually down at his side.
They reach the top of the stairs where the second floor warehouse spreads out in front of them in disarray It is dimly lit with only the left bank of lights turned on; the staircase brings them up facing the darkened right side. In front of them, a slender, dark-clad figure rises from a hunkered-down position, its back toward them. They are about 35 feet apart.
Kenny shouts, "Hey!"
The figure faces them, and the intruder says, "I'm gonna kill you motherf***ers!"
They see he is holding something, a dark object, down by his left side in his left hand. Now, he brings it up toward them. There is only one thing to do, and both men do it simultaneously.
Kenny Der draws his pistol, going to the two-handed stance he has always practiced at the shooting range, though he has never fired this particular handgun since he purchased it. This USP is a Variant One, traditional double action, carried hammer down and off safe. Kenny cracks off the first shot double action then fires another as he realizes that he is exposed to the gunman, and begins to drop to kneeling to reduce his target profile. Beside him, Darrell hastily triggers a single un-aimed shotgun blast and runs sideways to his left to get out of the intruder's line of fire.
This puts Darrell, with the 12-gauge, to the antagonist's right and about 25 feet from him. A southpaw, Darrell raises the gun to his left shoulder and pulls the trigger. Nothing. He has forgotten to pump. He racks the action and bam-bam-bam, fires three shots as fast as he can work the slide and trigger. He sees the figure spin and fall, and stops pumping and shooting. Meanwhile, Kenny has kept up a drumbeat of fire with his pistol and gone to slide-lock. He, too, sees the man go down.
Darrell feels a desperate urge to be out of there and sprints back toward the stairs, bumping Kenny as he goes. Kenny reloads, tucking the empty magazine reflexively back in its pouch, and cautiously moves forward keeping his HK trained on the downed figure. He gets a couple of yards away and sees that the man is motionless, looking like a pile of bloody rags, face down. The fallen assailant's left hand is behind him, palm up in what reminds him of a swimmer's stroke. And, near that hand is his weapon.
Oh, God. It's not a gun after all. It's a black steel hammer, just like the ones they use in the shop.
Kenny Der turns and follows Darrell Kifer. He gets on the cell phone and immediately dials 911.
Paramedics arrive first. Elements of Baltimore PD's famous homicide unit arrive some 25 minutes after the shooting. By now, of course, all lights have been turned on so rescue personnel can work on the wounded man and so the first responding patrol officers can clear the building of any other burglary suspects, none of which are found. Tygon Walker, age 37, is pronounced dead of multiple gunshot wounds at the scene. The businessmen tell the cops what happened.
Their guns are taken as evidence. Der has fired all nine rounds that were initially in his pistol and did not fire after reloading. When Kifer's shotgun is unloaded, five live rounds are remaining in the magazine and the last spent shell fired is recovered from the chamber. Three spent 12-gauge hulls and nine spent .45 ACP casings are recovered from positions consistent with where the men tell the detectives they were when they fired. No arrests are made.
Both armed citizens go home shaken. Der finds himself sitting up late, with his other pistol at hand, a Para-Ordnance P13.45. Felons in East Baltimore tend to run in packs and he is desperately afraid of gang retaliation for the shooting. Kifer is likewise distraught; paramedics have had to administer oxygen to him at the death scene.
A police record check shows Tygon Walker to be a career criminal with numerous convictions for burglary and assault. Autopsy shows that six of the nine .45 slugs have struck him, five remaining in the body and that there are numerous buckshot holes of entry and exit in the corpse, with 13 of the .33 caliber lead balls lodged in the cadaver. Many of the wound tracks, and all of the potentially lethal ones, have entered from behind the lateral midline. Extensive needle tracks are also present on both arms.
A toxicology screen shows that at time of death, Walker had 510 micrograms per liter of free morphine in his bloodstream, and 0.21% blood alcohol content. This means that he was more than 2.5 times legally drunk (a standard of 0.08%), and the pathologist who did the autopsy will later tell the Grand Jury how massive the amount of heroin he had on board. Heroin addicts found dead from overdose, he will testify, are often found with only one or two hundred micrograms per liter in their blood.
Five days after the shooting, both men report to the police department to be interviewed in detail, accompanied by legal counsel. Darrell Kifer's interview goes uneventfully. At one point in Der's interrogation, he is asked whether he went up to the body and replies in the negative. After the interview he discusses this with his lawyer, David B. Irwin, and tells him about going up a couple of steps away from the corpse and seeing the hammer. Irwin has him immediately sit down with the lead investigator and explain that. Questioning turns intensively to whether or not he planted the hammer in the suspect's dead hand.
Five months later, the Baltimore City Grand Jury will return a true bill of indictment charging both Der and Kifer with Murder in the First Degree.
The attorneys arrayed against one another in State of Maryland v. Kenny Der and Darrell Kifer were all famous for their courtroom skill, representing a virtual duel of the titans. Mark Cohen, chief prosecutor under district attorney Patricia Jessamy, argued the case personally. Widely considered the best prosecutor in an office of some 200 experienced criminal trial attorneys and one of the best in the country, Cohen had recently prosecuted a young Baltimore man for shooting a priest he claimed had sexually assaulted him. The priest "took the Fifth" on the witness stand and the jury acquitted the man who shot him.
Der was represented by Dave Irwin and Joe Murtha, who became nationally famous for their skillful representation of Linda Tripp during the Monica Lewinsky affair. Kifer's lawyer was Leslie Stein, a well-known local criminal defense specialist.
Trier of the facts was Judge John Glynn. Both sides had agreed to a bench trial, in which there would be no jury and the judge would determine the facts as well as the applicable law. Trial began on Friday, January 17, 2003, in Baltimore Circuit Court, just before the MLK Day holiday weekend. In his opening statement, prosecutor Cohen said it was Murder One because the two defendants had lain in wait to ambush and kill, and because they shot Walker multiple times and in the back. Because they had not retreated as Maryland law required them to do, and because the pistol had been loaded with hollow point bullets. He also implied that the defendants had planted the hammer in Tygon Walker's dead hand. Testimony began with the lead detective, Bob Cherry, describing the scene as he arrived, starting the audiotape of the defendants' interviews.
On Day Two, the judge allowed the defense's only expert witness, me, to testify out of sequence because dates had conflicted with another murder trial on the opposite coast. I explained and demonstrated with still photos and video how even in brighter light than what the defendants had to work with, at the distance of 35 feet, the black steel hammer (16" long, weighing just under 3 pounds) was, when held by its head, almost indistinguishable from a long barreled, blue steel revolver. I used as exemplars an 8 3/8" barrel S&W .44 Magnum (12" overall, just over 3 pounds) and a 10" Dan Wesson .357 (14" long, just over 3 pounds). The judge was shown how a right-handed man might pick up such a hammer with his left hand to feed it to his right hand in a striking posture, exactly mimicking a "man with a gun" appearance.
In states such as Maryland that have a retreat requirement in their self-defense law, retreat is only demanded when it can be done so with complete safety to oneself and others. I explained if the men had turned and ran toward the stairs, they would have been helpless and could have easily been shot in the back, supporting this contention with videotape of firing the .44 with live ammo at 35', recorded by a PACT timer. Two men could not have gotten down the stairs in time, and then found the keys to open the double dead-bolt lock that led into the street where the prosecution said they should have fled. They would likely have been murdered while attempting to do so.
Using a videotape on this issue I had done previously for the American Bar Association and the American Law Institute (1), it was demonstrated the human body can turn 180 degrees in only a fraction of a second. This was supplemented by a video we had done the previous August at the Continental range in Maryland, with the defendants using exemplar weapons. Der had acted out his nine-shot firing sequence a couple of times, each at about 3.5 seconds. Kifer had been able to fire a three-shot sequence from a 12-gauge Mossberg pump in 0.94 of one second. This was absolutely consistent with the time it takes a human body to spin away from danger to it, and with the buckshot pattern entry wounds found on Tygon Walker. I had timed, at the death scene, how long it took Kifer to sprint from his first firing position to his second. In total, from first round to last, the thirteen shots had probably been fired in no more than five seconds.
An Ability Factor
I was also able to explain why the state's pathologist had listed as two shotgun blasts fired into the body was actually only one. The wound pattern on Walker's left arm was identical to the buckshot pattern in his left lower back. Six of the nine pellets in a single blast had torn into the forearm and five had gone through, re-entering the torso amidst the three pellets that had missed the arm.
Finally, it was explained that under contemporary training standards, the hand movement of Walker and the black object in his hand, which both defendants described to police, created an "Ability factor," the reasonable and prudent belief that Walker possessed the power to kill. Being within easy range of the long barreled black revolver the hammer so closely resembled, "Opportunity factor" was fulfilled: their antagonist could be reasonably believed to be capable of killing them both immediately. Finally, the statement "I'm gonna kill you MFs" clearly created "Jeopardy factor," the reasonable and prudent belief the opponent's intent was to kill or cripple them. Ability, Opportunity and Jeopardy came together to create a situation of immediate, otherwise unavoidable danger of death or grave bodily harm to them which, under the Maryland law, absolutely justified their use of lethal force against Tygon Walker.
The prosecution picked up the ball again in the waning hours of day two and all of day three. Lead investigator Bob Cherry returned to the stand. On cross-examination -- respectful from Irwin, brutal from Stein, like "good cop/bad cop" -- Detective Cherry proved to be an honest man as well as a skillful investigator. He allowed he had never seen a homicide case like this one where the shooters were so forthcoming with information, and still charged with murder. The only new evidence beyond the statements of Kifer and Der that had developed in the five months between interrogation and Grand Jury, Cherry testified, was a statement from the dead man's mother that he was right handed. Of course, the two defendants could not have known that, and there were any number of reasons why Tygon Walker might have picked up the hammer with his non-dominant hand. Needle tracks on both arms indicated that he was ambidextrous enough to inject a heroin syringe with either hand. The state's final witness, a medical examiner who had not done the actual autopsy, admitted the angle of wounds was consistent with a rapidly turning man and with the defendants' accounts of the events. The prosecution closed.
Der and Kifer took the stand on day four, confirming what they had told detectives back when the shooting happened. Der explained that he hadn't mentioned approaching the body at first for fear of being falsely accused of planting the hammer, which he believed had been stolen by the deceased in a previous burglary. (Asphalt embedded on that hammer showed it had been used to pound the outside wall: it had entered the scene from the outside in, almost certainly carried there by the burglar himself.)
Both sides offered impassioned closing arguments, having called only three people apiece to testify before closing their cases. Judge Glynn did not need to waste time with further deliberation. At 3:45 PM on Thursday, January 23, day four of the trial, the judge ruled both defendants Not Guilty on all counts. An ordeal that had lasted for 18 months was over at last.
Tell everything to your attorney before you and he sit down with the investigators to go over the details. If Der had done so, there would not have been the perception that "he lied to us about approaching the body, so he or his partner must have planted the hammer as a throw-down." This had a great deal to do with the decision to bring the case forward.
Many of the defendants' supporters believe the race card was at work here. Within a close time frame to this shooting, an African-American businessman in Baltimore shot and killed an African-American burglar under very similar circumstances, and the DA's office ruled the homicide justifiable. Der, American-born and of Chinese descent, and Kifer, a Caucasian, had killed an African-American. Some believe this created political momentum to bring murder charges in spite of the facts and the law, particularly during a time when the district attorney was coming up for re-election in Baltimore. I can't confirm or deny whether this is true. But, as with the trial of the four NYPD officers who fired 41 shots at Amadou Diallo and were acquitted of all charges at trial, this case shows that if you did the right thing based on reasonable perception and acted within the law, justice should ultimately prevail over "the race card." It did this time.
Go ahead and carry hollow points. It's the safest ammo for all concerned, and has been proven to stop fights quicker. When the other side falsely accuses malicious intent in selecting this ammo, you and your expert witnesses will be able to shoot that allegation down as effectively as we did in this case.
Aim, don't just point. Kifer's first shotgun blast, hastily triggered without a visual index, missed entirely. Of Der's first point-fired shots, all missed their target except for a ricochet that struck Walker in the front of one shin. When Kifer triggered his last three shots in a sub-one second volley, the gun was at his shoulder and his eye could see the muzzle was on target; all three blasts inflicted dynamic, stopping hits. Der point-shot every round, and by the time he was dialed in and hitting, his .45 slugs still struck peripherally and by themselves quite possibly would not have brought Walker down. Had each man taken a fraction of a second to aim at the beginning, one or two +P .45 bullets and a shotgun blast entering from the front would very likely have dropped the antagonist. This would have prevented allegations of malice and murder based on "too many shots" and "shots in the back."
I want to thank the many contributors to the defense fund that financed the successful advocacy for Der and Kifer. They all helped to do justice.
(1) "Use of Lethal Force in Self Defense: What Prosecutors, Defenders and Policy-Makers Should Know," American Law Institute/American Bar Association, 2001, $166 postpaid from Police Bookshelf PO Box 122, Concord, NH 03302.