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Blue Duck
January 28, 2012, 10:28 PM
This is a question that has been bugging me, for sometime, and it may seem like one of the last things most people would worry about, in the unlucky event, of having to defend one's self during a home invasion, but for others it may be an issue worth discussing.

If a law abiding homeowner ends up defending his home against a home invasion, and the result is a clean case of selfdefense, with a perp or two down for the count, what normally happens when the cops get there?

I know that still yet, it is not uncommon for the homeowner to be arrested, and of course all weapons used in the fight will be conficated by the police as evidence, and may or may not ever be returned to the citizen.

Ok, so you might have to spend a night in jail at the least until the matter is cleared up, or bail is set, etc, some have even said calling a lawyer even before you call 911 might not be a bad idea.

However, my main question is, lets just say that you are a serious hunter and gun collector with a large safe locked full of expensive firearms. Will the cops take into custody your entire lawfully owned firearm collection, from your locked safe, as well as any other firearms in the house even though they were not used or involved in anyway with your recent defense of your life and home?

arch308
January 28, 2012, 10:31 PM
Good question.

deerslayer303
January 28, 2012, 10:36 PM
Great post and an Outstanding question. I would think it boils down the the state. But hopefully someone actually IN law enforcement will chime in, everything else will probably be speculation.

TXAZ
January 28, 2012, 10:43 PM
I think this depends very much on your state, if not individual community. (And this is a personal opinion, not legal advice.)
In Arizona in the last several years, the Tucson prosecutor has taken a very draconian view of self defense in deference to Arizona state laws, making it difficult on honest homeowners who arm then protect themselves, including filing assault and attempted murder charges against the home owners. (NRA has even gotten involved) 100 miles to the north, It's just the opposite: people defending their homes (and following state laws) often get exonerated in a week or less.

As such, IMHO, if you were in Tucson, you are more likely to have your otherwise-lawful-gun collection taken, (lawfully or otherwise) than in the Phoenix area.

Does that help any?

Hoosier70
January 28, 2012, 10:48 PM
Say nothing get a lawyer ASAP

Ruthless4christ
January 28, 2012, 11:19 PM
Once you hear the cops coming in. put your gun down. as said before, say nothing. demand a lawyer, hopefully you already know one. The cops have no reason to believe that you are the victim and may proceed to try and get you to self incriminate on the spot. anything you say can and will be used against you.

Crazy88Fingers
January 28, 2012, 11:39 PM
If you don't say anything at all while standing over two dead bodies, then you're definitely going to jail. In this scenario something along the lines of "these men forced their way into my home, and I defended myself" is a good thing to open with. If they start asking for specifics or you get uncomfortable then tell them you're shaken up, and request to see a paramedic. They can't deny you medical attention and at that point the interview is over.

Know your state laws, and do your best to work within them. If your state has a clear castle doctrine and you acted reasonably, you'll probably be allowed to sleep in your own bed that night.

*I am not a lawyer*

*Edit: Also be sure to identify yourself as a victim in the 911 call. "Two men just broke into my home and/or attacked me and I shot them. Send police and an ambulance."

Ruthless4christ
January 29, 2012, 12:13 AM
forget what I said and go with crazy 88. its better. :o

BillCA
January 29, 2012, 01:55 AM
I'd recommend you buy Alan Korwin's new book, After You Shoot - Your gun's hot, the perp's not. Now what? (http://www.gunlaws.com/AYS.htm)

Alan begins with the premise that what you say when you dial 911 may be used against you. It's sound advice. From the moment the action is over until your lawyer takes over, what you say and how you say it can make all the difference in the world.

Massad Ayoob as suggested minimizing your discussions with the police over the specific details and that includes when you dial 911. As the police arrive, you should have put the weapon down in a safe manner and greet them unarmed. They won't always know who is the good guy or bad guy. You cooperate only to a point. You do want them to know you're the victim, but you don't want to get bogged in details while your adrenaline is still pumping and you're still dealing with emotional shock.

I'm not a lawyer, nor am I offering legal advice. I'm relating what more experienced folks have suggested we do in the aftermath. As always, it is worth investing a few dollars to seek legal advice ahead of time and to have several business cards of criminal attorneys with firearms experience to call.

Dialing 911
Calls are recorded. Your voice. Your words. Choose carefully. You do not want to say "I just shot a burglar!" or "Some guy tried to knife me in an alley and I shot him!" These are admissions of responsibility ("I shot him!") and point directly at you as the perpetrator.

Unfortunately, 911 operators are trained to obtain as much information ("intel") as possible for responding officers. When you ask for an ambulance because "A man trying to rob someone got shot", they will ask you who shot the man or if the shooter is still there. They may be more direct - "Sir, did you shoot the man?" And it's hard to go against a lifetime of believing that being cooperative and honest is the best policy. But if there is even the slightest question of justification and the DA has your "confession" on tape, it could be game over.

Arriving Cops
Both Massad Ayoob and Alan Korwin have covered the procedures for what to do when the cops arrive. There is a certain amount of cooperation you provide before telling police you'd prefer to speak to your lawyer. Once you do that, their questioning should stop. If any cop pushes you for a statement, if you say "I feel like I might get sick" it will clear a nice circle around you for a while.

In the Home
Married or not, your spouse or significant other should be forewarned to follow your lead and talk to your lawyer before answering any more than basic questions (name, relationship, address). If you have children at home it's a good idea to ask a lawyer ahead of time just what control you have over them being questioned by police.

Keep in mind that if you or your spouse had the presence of mind to lock the safe before police arrived, they're still likely going to open it. But there is generally no hurry and you can refuse permission (I dunno, don't you need one of those warrant things? I'd rather let my lawyer deal with that.) Seizure of your firearm collection may depend on how the scene looks, what information and evidence they have and the local DA's attitude. If you're and/or your family are in pajamas or you're in your BVD's, the door jamb is splintered and there's some scumbag is on the floor with a 9mm Hi-Point in his hand, there may be little to indicate something other than self-defense.

Do you live alone?
If so, do you have a trustworthy neighbor, friend or relative nearby? Often times, after their preliminary investigation, police will want to "talk to you further, downtown." That means leaving your home in the hands of police searching for evidence. It is in your own best interest to have someone arrive to take possession of keys and be responsible for locking up or arranging for the security of your home (e.g. replacing the front door or at least nailing plywood over it.) That person can also take notes of what he sees police removing from the home in your absence.

¹ If the perp's accomplices claim they saw it all before you tell police others were involved, your claim that they were accomplices seems like a thin denial. But if you are able to at least tell the cops that one or more persons ran off and later see one talking to police, your "Hey! He's the other guy!" statement is much more believable.
² Nor is there any need to lie about what happened. If you're not sure you should say something, then don't. Let your lawyer earn his money. Rule number one is never admit you shot someone without talking to your lawyer. For all you know, you fired at him and missed but his frightened accomplice shot him in the back. Stranger things have happened!

Frank Ettin
January 29, 2012, 02:09 AM
BillCA generally covered the ground.

Another thing to remember is that there is no universal answer to what exactly what will happen. A lot will depend on exactly what happened, how it happened, what initial conclusions the arriving officers make and what the local procedures are.

In addition to Massad Ayoob and Alan Korwin, you might want to read this by Marty Hayes. (www.armedcitizensnetwork.org/images/stories/Hayes-SDLaw.pdf)

TennJed
January 29, 2012, 02:26 AM
Good thread. Not a topic I game much thought to before hand, but I am glad it was brought up

Glenn Dee
January 29, 2012, 08:08 AM
Assuming the perps are strangers to you, and your family...

Remain vigilant until the police arrive. You dont know if they are really out of the fight until an EMT declare them dead. Or the police are on the scene, and take over. Also consider that they probably didnt walk to your home... There is probably at least one perp (driver, and possibly a lookout) still outstanding.

While your waiting for the police... DO NOT PUT YOUR GUN DOWN!!! I suggest maintaining it in your hand in your pocket. The police may come in silent. So consider this. When you do put the gun down do not hide it, and step away from it, remember to not put it in reach of any perp. If you hear sirens, and see flashing lights raise your empty hands above your head, and announce that your the home owner. Expect some rough treatment from the police, and even the possibility of being handcuffed. This would be normal. It dont mean that your a suspect, or in any kind of trouble. This is normal procedure to secure an ongoing scene.

As far as what to say to the police. Thats the $64,000.00 question. My opinion is that you must say something. Keep it minimal, and factual. absoloutly NO bravado, or clever comments. IME between 75% and 100% of a shooting investigation will be decided by forensics, and proximity. Self defense being an affermative defense the burden of proof is not on the state but on the actor... You. Absent politics the police will have little problem figuring it out, and reporting the truth to the states attorney.

Well then... there you have it...

Glenn

jrothWA
January 29, 2012, 11:25 AM
then on separate phone advise your attorney of situation.

Let the police get the physical evidence and wai till attorney arrives to represent you.

Keep it super simple is the order here.


It all depends on the political orientation of the prosecutor, what follows next.

Frank Ettin
January 29, 2012, 12:23 PM
...It all depends on the political orientation of the prosecutor, what follows next. Phooey! Are you suggesting that the impressions and findings of the investigating officers, the physical evidence, any statements of participants or witnesses, etc., have no bearing

m&p45acp10+1
January 29, 2012, 01:11 PM
Rule numero uno. NEVER EVER LIE TO AN LEO. EVER Do it once nothing you say will be believed after that.


I know of some one that was involved in a deadly force situation involving a family member's exhusband. There were a lot of things against the exhusband. Deadly force was used and BG was pronounced dead on the scene. He was asked by the LEO on scene if he had any other weapons. He awnsered truthfuly that there was a single shot shotgun in the trunk of his car. LEO left it there.

The man went before a grand jury that took 30 minutes to come back with a justifiable use of deadly force decision. His gun was returned to him the following day.

Note I worked with him for a while until he retired. He is one of the nicest people you could ever hope to meet, and a very humble person.

Glenn Dee
January 29, 2012, 01:12 PM
THANK YOU FIDDLETOWN!!!!!

The truth will be the truth. The facts will remain the facts.

Patriot86
January 29, 2012, 01:49 PM
Lots of good advise here, a simple statement so they dont haul your ass right off to jail is a good idea then STFU until the lawyer gets there. If they take all your guns they take all your guns, at least you are alive and that can all be sorted out later. I would probably offer up the gun I used willingly but no others. In the area where I live I as much expect to be treated like a gang banger who just shot a 9 year old if I had to use my firearms to defend myself in the home. But that aside, I am not discouraged. I think the bottom line is it is going to depend on where you live, If you live in the Chicago and NYC area expect to be treated like a criminal, if not by the cops then by prosecutors. If you live in an area with more sane level headed prosecutorial officials you might just be treated as a hero.

AH.74
January 29, 2012, 01:56 PM
The possibility of confiscation of all guns in the house is one reason I store at least one firearm off-site. It's definitely something to consider. I don't see justification of it, but you never know.

TennJed
January 29, 2012, 02:19 PM
then on separate phone advise your attorney of situation

Maybe I am way off base, but how many people "have an attorney". I have never used one and the moments after a SD shooting would not be the best time to be thumbing through the yellow pages

Slotback
January 29, 2012, 03:55 PM
A request to obtain counsel first before answering questions is something that can not be denied. In short "I'm scared and I need a lawyer" is going to be understood by the cops for the most part.

Departed402
January 29, 2012, 05:14 PM
There is a lot of checks and ballances in the criminal justice system, and plenty of room for discretion on the part of officers, prosecutors, judges, and juries. What it boils down to is if you acted in a REASONABLE manner given the situation.

What is deemed reasonable largely depends on people in your area. Police in your area may or may not have a positive attitude towards civilian gun overship. The same goes for District or County Attorneys, Sheriffs, and Judges, except they're elected officials, and they will likely side with the popular opinion of the people around you. Politics should not be underestimated in this regard.

However, if you broke any laws, or think justification of your actions is lacking it would be a good idea to lawyer up as soon as possible. Depending on your political climate the police may be out to confiscate as many guns as possible.

Finally, expect the police to take the gun you used to defend yourself as evidence. As long as you are found not guilty it should be returned to you. Keep in mind the police's evidence lockers may not preserve your firearm as well as your gun safe that has humidity control.

AH.74
January 29, 2012, 05:14 PM
Maybe I am way off base, but how many people "have an attorney". I have never used one and the moments after a SD shooting would not be the best time to be thumbing through the yellow pages

You're not off-base at all. This was a strong recommendation for something to consider from different instructors I've had, for just the reason you mentioned.

I do have one, did not always. It was not as easy to find one as you might think. You also need to find someone you feel comfortable with, for many reasons.

hangglider
January 29, 2012, 05:43 PM
Is there a resource available for 2nd-amendment-inclined lawyers in our particular areas?

Crazy88Fingers
January 29, 2012, 06:02 PM
BillCA:
Calls are recorded. Your voice. Your words. Choose carefully. You do not want to say "I just shot a burglar!" or "Some guy tried to knife me in an alley and I shot him!" These are admissions of responsibility ("I shot him!") and point directly at you as the perpetrator.

Unfortunately, 911 operators are trained to obtain as much information ("intel") as possible for responding officers. When you ask for an ambulance because "A man trying to rob someone got shot", they will ask you who shot the man or if the shooter is still there. They may be more direct - "Sir, did you shoot the man?" And it's hard to go against a lifetime of believing that being cooperative and honest is the best policy. But if there is even the slightest question of justification and the DA has your "confession" on tape, it could be game over.

"A man trying to rob someone got shot" presents you as an uninvolved third party witness. That's a slippery slope. There's plenty of physical evidence and they'll piece the puzzle together eventually. If you're trying to avoid accepting responsibility you might as well ditch the gun and run home before the police show up. Or don't make the call at all.

Dancing around the basics of the scenario will only lead to more questions and more suspicion. Like I mentioned in my first post: know the law, act within it, and stick to the facts.

Blue Duck
January 29, 2012, 06:56 PM
Interesting posts, and pretty much what I expected for answers. I hope I never have to deal with a scenario like this, but I get reminded of it sometimes, when watching the news, the police go into a home, (however the resident is usually the perp in this case) and the result is they confiscate all guns, loose cash, etc in the house as evidence, and it gets plastered all over the local news.

Nnobby45
January 29, 2012, 08:05 PM
Been watching COPS for many years and have seen a few such cases over time. I've seen cops actually prompt the home owner to say he was "in fear" and then heartily agree.

None of the others I've seen resulted in the arrest of the home owner when it was a stranger that entered the home unlawfully.

In my community, Northern Nev., one isn't likely to be arrested, especially if it's established that the home invader is a stranger with a criminal record.

Now, that isn't to say that when the cops arrive they won't be putting handcuffs on people until they get things sorted out. Not to say they will, either.

When we're being ordered to do something by the police, that IS NOT the time to be explaining the situation while refusing to comply. That's the time to be fully complying. Once things are under control, the officers will be in a much better listening mood.

gvw3
January 29, 2012, 08:08 PM
In most cases your gun will be gone for good. I was in a situation somewhat like this years ago. I spent more that my gun was worth trying to get it back. The only reason I did get it back was my wife had a brother that worked for the states attorney. I still have the gun.

Lost Sheep
January 29, 2012, 08:15 PM
Slotback (#20) put it well, but I have heard it put better. Tell the police that you want to cooperate, but feel unwell (in shock?) and know that this is a serious situation and want to speak to an advisor before making a statement.

Put more succintly, "I want to calm down before I give a statement." If you feel faint, tell them. It is no comment on your manhood that the post-engagement adrenaline dump affects you.

It IS important to point out any evidence of your innocence and the shooting victim's guilt (the shootee is now definitiely the victim of a gunshot wound, no matter HOW guilty of murder, mayhem whatever. One can be the victim and perpetrator simultaneously of separate crimes.)

If you point out exculpatory evidence and the police later cannot produce it, it weakens their case and gives you grounds for acquittal if it should ever get that far. But the first principle is that you don't want that proof of your innocence to be overlooked, compromised, destroyed or lost.

Glenn Dee (#16) The truth is always the truth and the facts are always the facts, but the facts that get collected (and admitted into evidence) may be interpreted so that the UNDERSTANDING of the events does not quite coincide with the truth. No forensic examiner can collect ALL the facts. Selective collection and selective interpretation, whether conscious or unconscious, gets added to preconcieved notions and sometimes gets sorted out in court and sometimes the conclusion gets it wrong.

On the 911 call,

First, the request for assistance: "Send an Ambulance and the police right away to 1234 Maple Street."

The 911 operator will begin to ask questions.

You may want to add more talking:

This is a fact: "Someone is bleeding in the front doorway."

This is a narrative: "A guy broke into the house and got shot"

This is a confession: "I shot a guy in my house."

What will (if it comes to it) your lawyer find less troublesome (and expensive) to your defense?

Stay as calm as you can. Talk slowly. Remember to breathe. If feeling faint, sit down and lower your head. ALWAYS leave your hands in view of the police. Follow instructions. If you don't understand the instructions, make NO movement. If you must move, move slowly.

Lost Sheep

Nnobby45
January 29, 2012, 08:16 PM
Will the cops take into custody your entire lawfully owned firearm collection, from your locked safe, as well as any other firearms in the house even though they were not used or involved in anyway with your recent defense of your life and home?

That's a good question.

When I took John Farnam's course, he advised us to keep our gun safe locked, and don't answer any questions in regards to it's contents.

Do not have conversations with your neighbors about the contents of your safe, or how many guns you own.

Obviously, don't put the gun you used in the shooting back in the safe before the police arrive.

As we know, there are jurisdictions where they police are quite capable of confiscating all guns as "evidence". John also advises that you read your gun magazines and then throw them away. A living room full of Gun Mag.'s can be used against you and prompt the police to look even further. :cool:

Nnobby45
January 29, 2012, 08:20 PM
In most cases your gun will be gone for good. I was in a situation somewhat like this years ago. I spent more that my gun was worth trying to get it back. The only reason I did get it back was my wife had a brother that worked for the states attorney. I still have the gun.

I don't agree with that as a GENERAL statement. Certainly true in some jurisdictions. Unfortunately, there are states (or counties) that routinely confiscate guns for a variety of reasons, knowing that hiring an attorney to get them back would be very costly. The state of Kalifornia comes to mind.

Lost Sheep
January 29, 2012, 08:22 PM
I was present at a domestic disturbance call once.

The first officer arriving on scene ordered/asked me to remove my hands from my jacket pockets. (Alaska, wintertime, outside) I complied, though I was not sure why he wanted that at the time (in retrospect, it is obvious).

After he determined that I was not involved, but only a witness, he looked back at me, observed my hands and said, "Put your hands back in your pockets." and smiled at me.

I complied.

Lost Sheep

orionengnr
January 29, 2012, 08:24 PM
Maybe I am way off base, but how many people "have an attorney".
Not that difficult to find 2A friendly attorney and keep his card in your wallet...just in case. I have one. You should, too.

In most cases your gun will be gone for good. Mayhaps it will, and mayhaps it won't. That will largely depend on your local DA's practices. Regardless, unless he can come up with some reason to entirely deprive you of your 2A rights, you probably have another self-defense weapon.

Steviewonder1
January 29, 2012, 08:32 PM
For the last several years I have had an attorney on retainer since CCW out in public. I also have a large Blanket Insurance Policy attached to my homeowners policy for "Stupid Lawsuits" against me in the event I kill your "Son who got in with the wrong kids" syndrome. I do not have to retreat where I live and will Kill any Perp to the ground that tries to attack me. When the police take that gun from me, I will go into my Safe and get it's twin and move on to the next day. End of Line.....

pjp74
January 29, 2012, 08:46 PM
This is what I was told at my last CHL renewal, the instructor who was a 20+ year veteran of a Police Dept., and spent 9+ years as a homicide detective.

He said when you call 911, report what happened, briefly, request police and medical attention. The operator will begin 20 questions with you, then repeat exactly what you said the first time, request police and medical attention, then hang up. Everything you say to the 911 operator is being recorded, you have way too much adrenaline still pumping through your veins to engage in any extended conversations.

He also stated even though you may not think it now, after it happens, you will want to tell someone, it is very easy to get diahrea of the mouth. Once LEOs arrive, answer the basic questions, point out any witnesses, where the BG entered, what weapon he had. Now, answer questions to a point, once basic questions turn to 20 questions, like why do you carry a .45, why do you use Critical Defense ammo, etc, that is when you should shut up and tell them you want to comply, but need to speak with your attorney.

Also, remember, the first LEO to show up is normally just going to be a patrol officer, a supervisor NORMALLY will show up on scene and he/she NORMALLY will be the one to make the decision whether you will be detained or not.

Just my .02

Jeff22
January 29, 2012, 08:48 PM
You're certainly better off to make a brief statement to the police after any self defense incident you're in. Give the first responding officers a brief synopsis, so they can get on with the investigation. If you decide to make a short statement to the police, make it to a supervisor or the case detective. You don't want to make multiple statements. One will do fine.

Police officers are trained to make a brief factual statement after any shooting incident they're involved in. It is often referred to as a "public safety statement" and deals only with the relevant information needed to deal with the incident and to protect the scene. Such as, how many suspects were there? How were they dressed? If some escaped, which way did they go? Are there any witnesses around? Are there items of evidence around that need to be protected and recovered? Does anybody need medical attention?

You don't have to give them your life story and you probably won't be able to remember all the details about the incident, so DO NOT try to go into great detail. But a brief statement is probably in your best interests. You have to survive the initial incident, and then you have to survive the investigation, and then you have to survive any potential civil litigation.

If you respond to the police in the same way that they are trained to do when involved in a self-defense shooting, it may help them reach an understanding that you were indeed acting appropriately under the circumstances. If you lie to a cop, or try to hide something from a cop, or if they perceive that you are trying to hide something, they respond like sharks do when they smell blood in the water . . . you do NOT want that to happen to you. Nor do you want to talk too much, nor make multiple statements about what happened to multiple investigators. The more you think this stuff through in advance, the better off you will be.

You should locate an attorney locally who has some expertise and understanding of self-defense issues, and talk to him soon. Get an understanding of how the law works in YOUR STATE and also what the actual "prosecutorial climate" is toward self-defense incidents is in YOUR LOCATION. Find out who the local police union uses as legal counsel for officers involved in a self-defense shooting.

Remember, most cops and most prosecutors (and most defense attorneys) don't have that much experience investigating legitimate self defense shootings, because they don't happen all that often in most jurisdictions. So you need to do some research ahead of time.

IN THE GRAVEST EXTREME by Massad Ayoob remains the standard work on the legal issues of self defense. It was written in 1980 and needs to be updated, but most of the information in there is still valid.

How much do you tell the police after you are involved in a self-defense shooting? A lot depends on how the self-defense issue is addressed in the laws of YOUR STATE. (look your laws up. Don't depend on somebody to tell you what they are, or what they think they are. look them up yourself. Depending upon how the statutes are organized, sometimes it's hard to find them on the web, and you may have to go look at the hard copy of the statutes down at the public library)

Where I live (Wisconsin), there is no "right" to self defense in the statutes -- self defense is an AFFIRMATIVE DEFENSE, where basically you are saying "Yes, I shot the guy in self defense AND THIS IS WHY." (Our statutes use the term "privilege" to define instances where otherwise unlawful acts are justified; such as the use of force in self defense) If there are witnesses that can support your actions, or evidence that would prove that events happened the way you said they did, YOU need to point this stuff out to officer friendly when he gets there. DO NOT presume that the cops will find this stuff on their own. Most cops, even detectives, do not investigate legitimate self-defense shootings very often. This means they may overlook evidence that is beneficial to your case. This may also mean that they mis-interpret events, because they're NOT familiar with this kind of investigation.

Don't misconstrue the suggestion that you should make a statement to the police to mean that you need to make a detailed statement at the scene of the incident. That is probably NOT a good idea.

What you need to do is sometimes referred to as a "public safety statement" -- that's what cops are often required to give at the scene of an incident they are involved in. It would be simple -- something like "I was gassing my car up and a guy appeared out of the darkness with a knife and he tried to rob me and he threatened me with the knife and began to advance and my escape route was cut off and I was in fear for my life and I shot at him to defend myself." Just a simple explanation of the incident. Don't go into great detail at the time, because you'll probably be too upset. Wait until you have counsel before you make a DETAILED statement, but tell the investigating officers SOMETHING -- a brief synopsis of events.

You will be handling it the same way that most police unions tell their officers to respond in such an investigation -- a brief description of events, followed by "I prefer not to make any more statements until I've had the advice of counsel".

Of course, all situations are different. And I don't know how the police and prosecutors handle incidents like this where you live. To make a determination about the "prosecutorial climate" in your locale, DON'T depend on anything written in the newspaper. Articles in the newspaper or features on television are not (generally) prepared by people who know anything about the law or tactics or much of anything else. They're just newspaper or TV reporters, NOT subject matter experts about anything. Most of the stuff you read in the papers has significant errors in it, not because the news media are participants in some vast conspiracy, but because THEY DON'T KNOW WHAT THEY'RE WRITING ABOUT. So don't depend on the media to get the facts straight on anything.

And don't depend on advice you hear from some gunshop commando or some guy you ran into at the gun show. A regular general practice attorney probably won't be of much use as a reference, either. You'll need to talk to somebody who specializes in this kind of criminal defense. And DON'T depend on advice from the cop who lives down your street. Absent specialized training, they won't know either! They may (or may not) be familiar with the policy of their police department, and how the police union advises them to act after being involved in an incident, but they probably WILL NOT have good advice for the private citizen in a similar situation.

(It seems that people who have a few seconds to realize that they're in danger can usually maintain better mental track during the incident than those caught totally by surprise. And if you are wounded or sustain a significant injury, you are in no position to be talking at all.)

Remember, ANY STATEMENT YOU MAKE TO THE POLICE CAN BE USED AS EVIDENCE. The police only have to inform you of your privilege against testimonial self incrimination during a custodial arrest. There is a common misconception that "it doesn't count" if you have not provided and signed some kind of written statement, and this is incorrect.

When you make this brief statement, make it to the sergeant or the investigator who will be the primary investigator on the case. Don't explain to just any uniformed cop who happens by, because they may not be primary on the incident. And only give your statement once. The more you repeat it, the more likely it is that there will be inconsistencies, caused by the stress of the situation.

If you aren't sure that you can make a statement and then stop talking, then it might be best to say very little at all.

Always remember: Most police seldom if ever investigate a legitimate self-defense shooting incident. If you are uncooperative, it makes it that much harder for them to figure out what actually happened. Innocent people usually DO NOT invoke their rights against testimonial self incrimination -- they can't wait to tell the investigating officers all about what happened BECAUSE THEY DIDN'T DO ANYTHING WRONG! Right or wrong, cops equate "silence" with "guilt". You can rant and rave all you want about your "rights" but the first right you have is to be responsible for your actions!

That being said be careful what you say, but it's best that you give them a little bit of information so they can start the investigation, and then ask for your lawyer. If there is evidence or witnesses that can verify your side of the story, the police need to know that. You can't assume they're just going to magically figure it out for themselves. If you want to avoid a great deal of trouble, you're going to have to cooperate with the investigation in a limited and careful way. But be very careful what you say!

Just remember not to over-think this stuff: Your actions will be evaluated based on the information known to you at the time of the incident. Your perception of threat. Your perception of tactical options. Your decisions will be compared to those of a "reasonable man" under the same circumstances

Some of the instructors who primarily train the armed private citizen (like John Farnam & Massad Ayoob) always suggest that you find an attorney in your area (if possible) who specializes in defending private citizens in self defense cases, and at least pay to talk to them for an hour or two and get their interpretation of the law in your state and the "judicial climate" in your locality -- how police & prosecutors proceed in these kind of investigations, how the process works, what political issues may be at play, and etc. That's pretty good advice, with the qualifier that, in many locations, it'll be pretty hard to find an attorney with trial experience in this unusual area, because in most places there just aren't that many true self-defense shootings. A regular general practice attorney probably won't have any specialized training or experience in this area, and they may not know that they don't know, so it's always possible that you may get some bad advice.

You might want to consider talking to the counsel for the local police officer's union or association -- it's quite possible that the local police union attorney has had some specialized training in this area, or can point you in the direction of somebody who does have such training

Read your state statutes to see how the whole topic of "self defense" is addressed -- in common law states, it may not be mentioned in the statutes at all. In other states, statutes may define the circumstances under which a citizen can use force to defend life or property (In my home state, Wisconsin, it's defined by statute as "privilege" and defined thusly: "The fact that the actor's conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct. The defense of privilege can be claimed under any of the following circumstances (2.) When the actor's conduct is in defense of persons or property under any of the circumstances described in 939.48 (Self-Defense and the Defense of others) or 939.49 ((Defense of Property).

In most cases, as a citizen who uses force in self defense, the way to approach this is EXACTLY the way it's approached when a law enforcement officer uses force in self defense: the affirmative defense: Yes, I used force to defend myself, and this is why I am justified in doing what I did

Should you have the misfortune to be involved in a self-defense shooting, the issue is NOT in taking responsibility and explaining your actions to the first responding officers or to investigators. What you need to avoid is making statements "in the heat of the moment" that are confusing, or not what you meant to say, or not an accurate recitation of the facts as you perceived them. The stress of a deadly force encounter can cause the mind to work in strange ways.

So don't make any detailed statements until after you've talked to counsel. But yes, you should tell the cops a few things:

INTERACTION WITH THE FIRST RESPONDING POLICE OFFICERS
(1.) When they arrive, do exactly as they say. If they tell you to put your gun down, then put it down. If they handcuff you, don't resist. Self defense situations are very chaotic, and the average officer does not go to many incidents involving a legitimate display or delivery of force by a law-abiding citizen, so it may take them quite a while to figure out what's going on.
(2.) What do you tell the cops?
-- "This man tried to attack me"
-- "The evidence is here"
-- "The witnesses are here"
-- "I will sign the complaint"
-- "I will cooperate with the prosecution"
-- "I will cooperate with the investigation, but I'm kind of upset right now."
-- I will cooperate with the investigation and make a full statement after I've had time to gather my thoughts and speak to my attorney."
(3.) You need to give enough of a statement so that the police have an idea about what happened. In particular, they need to know who potential witnesses are and where relevant physical evidence might be located. At the scene, they need enough information to begin the investigation and properly manage the crime scene. Remember, the police equate silence with guilt! The only people who utilize the "right to remain silent" are those with something to hide, so a carefully worded statement is probably in your best interest.

Young.Gun.612
January 29, 2012, 08:49 PM
Is there a state by state listing of 2A attorneys here or anywhere else?

Jeff22
January 29, 2012, 09:01 PM
Check out the Armed Citizen's Legal Defense Network for advice on attorney's who specialize in self defense cases

http://armedcitizensnetwork.org

A book that I just got that is very interesting is Self Defense Laws of All 40 States by Mitch & Evan Villos. The most recent edition seems to be dated 2010. This book contains the actual statutory language for the law in all the states, as well as some discussion of relevant case law

Jeff22
January 29, 2012, 09:09 PM
And here's another thing to consider. And don't take this the wrong way, because I don't live where you live, and I don't know the crime patterns where you live.

We don't get too many home invasion incidents around here. When we do, it's big news because it's unusual.

Here, the vast majority of home invasion incidents are dopers ripping off the other dopers, or they are somehow gang related.

The cops who respond to your incident may not be smart enough to figure out a legitimate case of citizen defending themselves because it doesn't happen that often in most jurisdictions.

So, be aware that they may have that perceptual bias. The experienced ones probably won't and the smart ones certainly won't, but you don't get to choose which cop(s) respond to or investigate your shooting incident . . .

I still think it's good to give a brief statement at the scene, if you have your wits about you, but then decline to talk until legal counsel is present.

I can't say this enough -- the more your actions conform to the way the police are trained to react when THEY are in a shooting, the better off you are.

Young.Gun.612
January 29, 2012, 09:58 PM
Thanks, but it appears as if you have to join the network to see the affiliated attorneys, and I'm not sure what if any cost there is. Too bad.

TennJed
January 29, 2012, 11:34 PM
Thanks, but it appears as if you have to join the network to see the affiliated attorneys, and I'm not sure what if any cost there is. Too bad

I looked over the link and it is $85 a year to join:(

Anyone have any free links to 2A friendly lawyers?


Not that difficult to find 2A friendly attorney and keep his card in your wallet...just in case. I have one. You should, too.

orionengnr, that is a good idea to carry a card in your wallet.

kinggabby
January 30, 2012, 01:18 AM
Maybe I am way off base, but how many people "have an attorney". I have never used one and the moments after a SD shooting would not be the best time to be thumbing through the yellow pages And what about the ones who can not afford a lawyer ? What do you do then ?

Frank Ettin
January 30, 2012, 01:30 AM
And what about the ones who can not afford a lawyer ? What do you do then ? Then he will be in a pickle.

If someone uses his gun in what he believes to have been self defense, he will be well advised to have legal counsel. If he winds up arrested and can't afford a lawyer, a public defender will usually be appointed for him. In general public defenders are conscientious lawyers, but they also tend to be overworked lawyers.

Private counsel earlier in the process is more desirable. But that can cost a lot of money.

BillCA
January 30, 2012, 02:30 AM
Jeff22 -- Nice synopsis of a complex subject.

Crazy88 - Yes, I could have probably worded it better. The primary point remains that you should avoid making a statement that "I shot him" or the like. It's better to simply ignore the dispatcher's question of "who shot the man who'd bleeding?" by telling them your description so the arriving officers can recognize you as the reporting party.

pjp74 - I disagree with your instructor's suggestion to hang up. Keeping the phone line open in case the perp has a partner you suddenly have to deal with - or if you see/hear him leaving, you can notify arriving police.

All of the advice about a brief, succinct synopsis is correct. It's normal for any "civilian" to still be frightened, scared, nervous and shaky in the aftermath of a life-threatening situation. Remember you do not have to answer every question they ask you. And sometimes your correct answer may be "I don't know right now, I'm still scared (or shaking, or it happened so fast, it's a blur)." Cops know that it may take you some time to calm down and have a clear recollection. It's especially true about time & distances because the adrenaline rush may distort your perceptions. If you give a basic statement and then tell them "Before I say much more, I'd like to talk to my lawyer."

Attorneys: I believe the NRA has a legal referral system. But the time to use it is well before you need it. Find a recommended local lawyer and talk to him/her for 30 minutes. Ask questions about how they operate and the resources they have. If you're comfortable with the lawyer, keep several of their cards in your wallet (and spouse's wallet). You want a lawyer who has handled firearms law and self-defense cases.

What is deemed reasonable largely depends on people in your area. Police in your area may or may not have a positive attitude towards civilian gun overship. The same goes for District or County Attorneys, Sheriffs, and Judges, except they're elected officials, and they will likely side with the popular opinion of the people around you. Politics should not be underestimated in this regard.

Who says that elected officials will side with popular opinion? It's more likely that they will campaign on popular issues, but have a draconian attitude towards civilian gun ownership. Their "tough on crime" message can very well disguise an anti-gun attitude, even when the use is legally justified. This is more common in large cities in places like the northeast (NY, Philly, Boston, etc.) and the Left Coast (LA, SF, Seattle, etc).

Powderman
January 30, 2012, 04:55 AM
So, what happens? There are some good posts here that cover the subject well.

I'll tell you this: The call we receive from dispatch usually gives us a decent idea of what we're headed in to.

What do you do? As has been mentioned before, make sure you are not in danger. Do not put yourself in the position where the perp can get to your firearm.

If you can call from a cell phone and can be outside in plain view, while you are keeping an eye on the person who got shot, so much the better.

When we come up, if we see you, the good guy, standing outside with your hands empty, our approach will be as low key as possible. If we do NOT see you, hopefully you're still on the phone with Dispatch, and you can assure them that you're OK.

If you are NOT on the phone--and we cannot see you--then we (knowing that shots have been fired already) will be entering the home with the possibility in our minds that you might be in danger, from a possibly armed criminal in your home. Thus, we will clear the house.

I have mentioned this to make sure that there is no mistake that the BEST way for the police to contact you in this case is with you in the open, and with empty hands.

I will also say this much: When we arrive, the only thing we know is that someone has been shot, possibly killed; you are the one who did the shooting, and that you have access to a firearm. The pieces of the puzzle we can put together from that point may make the difference between you going to jail that night, or not. If it is a VERY clear cut case of self defense, then there is a good chance that you will not be arrested or detained.

Understand that we know full well that you have the right to remain silent, and the right to consult with counsel.

However, let me paint a scenario for you. In this example, I have received a call of shots fired at your residence. I arrive (with plenty of backup), and see you standing on your porch--or seated. Lying out of your reach is a firearm. I will secure the firearm, ask you to stay put with another officer, and we will take a look at the person who got shot. Aid will be summoned, as well as my supervisor.

I will approach you, and ask if you're hurt in any way. I'll ask if you need medical attention as well for any reason.

If you're OK at that point, I will then read the "Miranda" admonishment to you before you say ANYTHING.

If you decide after hearing the admonishment to fill in some of the blanks, and summarize what happened, that's fine. If not ("Officer, I'd like to consult an attorney before I say anything") then that's OK as well.

Understand this well: there is a good chance that you will be detained on suspicion of manslaughter, however it goes. Our place is not to determine guilt or innocence; once probable cause has been established, we deliver you to the trier of fact (the Court) who will make the determination.

There is one other thing to be well aware of: You can be cleared of criminal charges--but the CIVIL trial will almost surely follow.

Kevin Rohrer
January 30, 2012, 09:26 AM
This is one of those 'What do I do if the sky falls' questions. I didn't read most of the responses as (no offense meant) they come from people whose knowledge in this area comes from watching TV. Some I did read were wayyyy off the mark.

However, your post-shooting response needs to be divided into two parts: pre-police arrival and post-police arrival.

Pre-Police Arrival
1. Give the Dispatcher enough information to have adequate resources respond (multiple patrolmen, supervisor, and ambulance) and can readily find your house and hopefully ID the BG's car and grab any accomplices. The situation inside the house also needs to be explained so responders know what to expect as the scene might not be secure (BGs still kicking, some on the loose, house occupants panicking, etc) .

2. Continue to protect yourself as the BG might get up or there may well be a second one who comes looking for his partner.

3. As soon as the police arrive but before they come in, put your weapon aside and ID yourself as being the homeowner. I'd raise my hands in the air to show I was unarmed so I was treated like the homeowner instead of a BG. I like to hear, "I'm the homeowner and I put down the gun. The robber is lying on the floor over here". That answers all the immediate safety questions and establishes GG from BG. My first responses would be: Is anyone hurt and is the robber alone?

Post-Police Arrival
There are only 3-people who can give you a knowledgeable answer to this question:

1. Defense attorney
2. Prosecutor who has jurisdiction in this matter
3. Detective or senior patrol person (sgt or above) in the PD who has >15-years on-the-job and who services your area

Their answers will be different, but their responses will be based on the political climate in your area.

ltc444
January 30, 2012, 09:37 PM
Just a few comments:

Jeff22 Post #35. Best discussion I have seen on this subject.

TennJed Post #19: My CCW Instructor provided a list of SUCCSSFUL 5a Attorneys as a part of the course materials. Most of them were successful in defending LEOs as well as civilians. Most Attorneys will give you an hour or so to discuse your situation.

Joneman post # 22: Do not expect to get your weapon back. Some departments have a problem with retaining a chain of custody once the case is closed. Pinal County SO, Paul Babeau is reported to have lost over 200 weapons along with the custody documents.

Recieve the Police you should be Clearly visible, with Open hands up, weapon on ground and out of your reach. Assuming it is safe to do so. Generally the bad guys DeDE when the blue lights are visible.

While on Reserve Duty in NM with a bunch of Ar Troopers I listened to a discussion with NM LEOs concerning NMs open carry. NM Guys said they loved it when they pulled up on a shooting. The bad guy was on the ground and the shooter was standing there with his gun on the ground along with his ID and his hands in the air.

MTT TL
January 30, 2012, 10:25 PM
Often times a good lawyer will be able to get statements thrown out if you have not been advised of your rights. I would not want to rely on that though.

I would be real careful about what you say. Just keep in mind you will have to repeat the story about one billion times. Laws are very different in different states and one action that might get you no billed in one state will get you locked up for 5-10 in another.

I would not count on the police not taking all of your guns unless the case is open and shut and they believe your story. Most likely they will believe that the gun apparent in play was the gun used; but a smart cop might want to cover his bases just in case something goes haywire.

know the law, act within it, and stick to the facts.

Great advice.

Alternatively if you acted outside the law but believed it was necessary at the time you are going to have a rough time of it. Strangely everyone here is assuming a good shoot. I can't really advise you here on what to do if you broke the law with the best of intentions but don't want to go to prison for momentary lapse of judgment in a situation that you did not instigate.

jjyergler
January 30, 2012, 11:19 PM
and I'll say it again. Always remember that your public statements are exactly that: public. Your posts on this and other forums are able to be used in a case, either civil or criminal. If a prosecutor or plaintiff's attorney can paint you as a gun crazed psycho waiting or hoping to ambush someone, they will.

Be careful what you say, be careful who you say it to, and always be aware that anything can be used against you.

Glenn Dee
January 30, 2012, 11:19 PM
Once again... Most of the investigation will consist of forensics, and proximity. (NO RACIAL INSULT INTENDED) If a White man is in his home and a black man breaks in at 4AM,and is armed, and the white man shoots him... It wont take rocket science to figure out what happened. You can swap races, and neighborhoods any way you want. You'd still get the same results.

The facts will be what they are. Some may even try to interpet the evidence to fit a particular scenario, but the facts dont change.

Has anyone ever actually see a citizen prosicuted for a self defense shooting in a home invasion?

As a criminal investigator... self defense shootings tend to be ground ball's.

zxcvbob
January 30, 2012, 11:28 PM
Location, location, location.
If your in Texas (maybe not Travis County), Oklahoma, rural Pennsylvania, (etc) you're probably OK unless the evidence strongly suggests a bad shoot. If your in New Jersey, of course you will be arrested and I would expect the police to tear your house apart looking for your other guns, doing as much damage as possible -- heck, they might even burn it down just for fun.

Other states will fall somewhere in between.

Having one gun stored in your safe deposit box might not be a bad idea regardless. Think I'll take care of that this week...

Frank Ettin
January 31, 2012, 02:56 AM
...If your in New Jersey, of course you will be arrested and I would expect the police to tear your house apart looking for your other guns, doing as much damage as possible -- heck, they might even burn it down just for fun...Do you have some actual evidence to support that conjecture or are you just playing around taking cheap shots at New Jersey? Bashing States just for fun is not helpful.

And you might want to remember that a number of folks, in gun friendly States, have had some very tough and expensive times establishing justification for their use of lethal force. Harold Fish, Mark Abshire and Larry Hickey come immediately to mind.

zxcvbob
January 31, 2012, 11:20 AM
Do you have some actual evidence to support that conjecture or are you just playing around taking cheap shots at New Jersey? Bashing states just for fun is not helpful.

A little of both. I've read accounts of this sort of thing happening in NJ, and I exaggerated a little just for fun. :)

In one case, if I can remember it correctly, someone won a Marlin .22 autoloader in a police benefit auction. Some years later, they were arrested for possession of that same rifle and charged with a felony because the tubular magazine holds too many rounds. (not sure if it's too many .22LR's, or potentially could hold too many if you load .22 Shorts.)

NJ police and politicians are *so* antigun (about like NYC but more corrupt) I really don't know how anybody lives there. Props to any gun owners who can manage it.

I think my main point is still valid; it depends on the politics of what state you are in, and maybe what county.

Frank Ettin
January 31, 2012, 11:38 AM
A little of both. I've read accounts of this sort of thing happening in NJ, and I exaggerated a little just for fun...[1] Statements like "I read accounts..." really don't mean much without a citation to the source.

[2] And "exaggerated a little for fun" isn't helpful or appropriate in this context.

...In one case, if I can remember it correctly,...What if you don't remember it correctly?

...NJ police and politicians are *so* antigun (about like NYC but more corrupt)...New Jersey has some strict and onerous gun laws. Whether the authorities in New Jersey (or New York) are corrupt is another matter for which you need to present evidence.

...I think my main point is still valid; it depends on the politics of what state you are in, and maybe what county. And your main point is still not valid. What matters most is exactly what happened, how it happened, what evidence there is, and how you handled the aftermath. Harold Fish, Mark Abshire and Larry Hickey were raked over the coals in gun friendly States.

truered
February 11, 2012, 05:10 PM
would anyone benefit from my advise? i am a home invasion survivor.

MTT TL
February 11, 2012, 07:13 PM
But of course. Self referential experience is mostly what we go on here.

dannyb
February 20, 2012, 11:17 AM
I don't want to add noise to the information here, but I do feel that one perspective has been overlooked. If your home is being invaded and you can fort up, being forted up and keeping 911 on the line seems to have worked in a few recent cases. This is especially true for the mother who held up in her bedroom and had 911 on the phone when the invader came crashing in causing her to kill him with the shotgun she was holding (this has been covered on the national news and many posts on this site and others). The other was is the report (a number of threads up from this one but in the Tactics forum) of the mother who had to fumble around looking for a weapon that she knew was around somewhere while her son, hiding in a closet, called 911 and got repeatedly disconnected. In either case, only a DA who was politically suicidal would have prosecuted. All this supposes that you can fort up in some room and maintain contact of some sort with 911.

kinggabby
February 20, 2012, 11:44 AM
I guess we have a bit more luck here in Oklahoma. For example Midwest City, Oklahoma had three shootings in the past 1 1/2 years that were ruled justifiable. And again one good thing about our Self Defense Act is if your shooting is ruled justified then you can not be sued by the one shot ( if he lives ) nor his family . Not they are not too easy as to let someone one off that shows overkill. As anyone has remembered the Ersland case in Oklahoma City. Now as far as the emotional aspect I will not begin to say I know what that will be like. Seeing I have never been in a shooting and I hope I never am . The only thing I like to kill is paper. But I do hope that if it were to happen that my faith in my Lord will guide through it( not preaching ) . I am sure everyone has their own way to deal with the aftermath . And you will only know what will help you once that time comes.

TexasJustice7
February 20, 2012, 01:01 PM
Here in Texas a police officer friend of mine told me that the gun used probably would be held, not other guns in the house. But this is Texas. That includes just about any self defense shooting. So good to have extras in Texas. :D

silvermane_1
February 21, 2012, 04:30 AM
imo video camras are the best way to go in a sd shooting when a home is invaded, that way now matter how the leo or da tries to spin it the video doesn't lie, yes there is fact of that video cams might say "hey come and rob me, i have expensive toys inside" , but it whould show the facts if it comes down to it, but what is already mention in the other replies in this post are great ideas aswell, but even in anti-gun communities video footage will go a long way in the foremention situation in the post.

Glenn Dee
February 21, 2012, 06:18 AM
If a firearm or any other object is used to cause the death of a human being... that firearm or device will be taken into custody as evidence. Evidence works two ways... It can tend to convict someone... or tend to exculpate them (proof of being not guilty of a crime).

A criminal investigator will have no legitimate reason to sieze other property including firearms, unless he has a reason to believe they constitute an ongoing threat or are a danger to others, or the well being of the subject. So if an Officer believes that a subject of an investigation is so distrought over his actions that he may do himself harm... He'd have a reason to sieze other firearms. Or if the subject is making statements about revenge, or makes threats to anyone... His weapons may be subject to siezure.

Unless I'm being misled by my friends in the legal profession all siezures are subject to judicial review at some point.

Sponge14
February 22, 2012, 01:04 PM
A criminal investigator will have no legitimate reason to sieze other property including firearms, unless he has a reason to believe they constitute an ongoing threat or are a danger to others, or the well being of the subject.

I posted this in it's own thread, but based on what is being said in here I thought it applied here too. It seems that the law doesn't care who was the good guy and who was the bad guy sometimes...

http://www.foxnews.com/us/2012/02/21/new-hampshire-man-faces-felony-charge-after-firing-gun-into-ground-near-burglar/

Frank Ettin
February 22, 2012, 02:27 PM
... It seems that the law doesn't care who was the good guy and who was the bad guy sometimes...
The law does indeed care -- once everything is finally sorted out. And someone who fires a gun if not appropriate or justified might just not be entirely a "good guy", if doing so is illegal.

zincwarrior
February 22, 2012, 03:08 PM
I don't want to add noise to the information here, but I do feel that one perspective has been overlooked. If your home is being invaded and you can fort up, being forted up and keeping 911 on the line seems to have worked in a few recent cases. This is especially true for the mother who held up in her bedroom and had 911 on the phone when the invader came crashing in causing her to kill him with the shotgun she was holding (this has been covered on the national news and many posts on this site and others). The other was is the report (a number of threads up from this one but in the Tactics forum) of the mother who had to fumble around looking for a weapon that she knew was around somewhere while her son, hiding in a closet, called 911 and got repeatedly disconnected. In either case, only a DA who was politically suicidal would have prosecuted. All this supposes that you can fort up in some room and maintain contact of some sort with 911.

This was the advice on an NRA video. Hold up if possible, inform 911 of your situation, location, and that you are threatened. Keeping 911 on the line while you loudly shout you have the police on the line, have a firearm, and will defend yourself were recommended. The view is that you now have evidence supporting your actions.

RamItOne
February 22, 2012, 03:53 PM
Two things
"and of course all weapons used in the fight will be conficated by the police as evidence, and may or may not ever be returned to the citizen."

seriously I may not get my gun back? Im not mocking the post, just had never thought of that possibility, kinda scary. Def need to take my sig 1911 off the nightstand.

As for the posters posting what you should say, I would hope you don't use whatever you typed as your response, for if a DA gets a hold of the 911 tape and what you type here and its verbatim, theyll say its either a boiler plate statement or youve put a lot of thought into shooting someone in your own home. Which i see nothing wrong with running scenarios in your mind but the good ol legal system sure can mangle words. Remember clinton and "is".....

DownShift
February 22, 2012, 09:14 PM
I live I central MS and we are pretty PRO firearms around here and there wasa case about 2 years ago in the neighborhood behind my old John where a home owner wok up to a man coming through a window an another breaking into his vehicle... He shot the man coming through the window, stepped out the front door as perp #2 was getting out of his vehicle and shot him also.... The outcome was when the police showed up they asked what happened and apprehended the 2 men... I never found out if either thieves died but the man was never charged and no guns were confiscated... We have a pretty legit castle law in my state and I have also been told personally by a LEO that if second I trying to force ably enter your home just step back wait for them to get in and drop them.. Quote " we don't mind cleaning up the mess" unquote was what is was told directly when I had someone kicking my apartment door one evening.... Again this is in what the rest of the country calls backward and hillbilly but the law around here really favors innocent people that defend what's thierS..

Fishing_Cabin
February 22, 2012, 09:58 PM
As far as the basics, from my experience, people seem to be confused on the right to remain silent. The Supreme Court has stated that, "when Miranda warnings are properly given, a person wishing to invoke the right to remain silent must do so unambiguously."

By unambiguously, it means, according to my memory and from legal updates, that a person must state that they wish to remain silent and want to speak with a lawyer. Being silent, in and of itself isnt enough to invoke your right to remain silent. I know others say do not say anything to police, but you should at the very least state this.

True self defense situations are rare, but for the most part there is no reason not to identify who you are, or give your photo ID or drivers license, that you ARE the victim, and that otherwise you are invoking your right to remain silent until you speak with your lawyer.

Refusing to say anything at all may give you some issues in the long run.

BillCA
February 23, 2012, 01:13 AM
Two things
"and of course all weapons used in the fight will be conficated by the police as evidence, and may or may not ever be returned to the citizen."

seriously I may not get my gun back? Im not mocking the post, just had never thought of that possibility, kinda scary. Def need to take my sig 1911 off the nightstand.



Seriously, you may not get your gun back. It will depend on how the legal machinery works. At the very least, your gun will be seized as evidence. It will be examined, checked for finger prints, very likely test fired and bullets compared to those removed from the deceased or wounded. If it's a clean defensive shooting, the court may order your release along with all property confiscated. But with some metro agencies, actually getting your gun back will be made as time-consuming, expensive and difficult as possible.

If you are charged and the prosecution's initial case falls apart in pre-trial motions, they may retain the gun while dithering over whether to bring "other charges". In that case, the gun is still on an evidence-hold. Prosecutors may not notify you that they've elected not to prosecute and after a year or two, the gun destroyed.

As for the posters posting what you should say, I would hope you don't use whatever you typed as your response, for if a DA gets a hold of the 911 tape and what you type here and its verbatim, theyll say its either a boiler plate statement or youve put a lot of thought into shooting someone in your own home. Which i see nothing wrong with running scenarios in your mind but the good ol legal system sure can mangle words. Remember clinton and "is".....
I might hope a DA would be so foolish. My attorney would shred the prosecutor's hide and turn it into gerbil bedding.

He would be lambasting the prosecutor's attempt at denying the defendant the right to seek and discuss the best possible legal advice with others, determine a correct and legal course of action to ensure his rights were protected and to use the advice he received. If said advice relies on a generic statement to avoid unintentional admissions or omissions during a period of high-stress, he is well within his rights to use such a statement under the 5th Amendment.

Moreover, he'd point out that the prosecutor's insistence that the defendant "putting a lot of thought [or training] into shooting someone in his home[i]" somehow automatically implies some kind of [i]mens rea, borders on prosecutorial misconduct. Using such logic, the prosecutor would indict airline pilots who survive a crash, NASA personnel for the Challenger and Discovery disasters and automotive safety engineers for any fatality.

At the same time, using the prosecutor's logic in reverse; had the defendant had informed officers that he owned a gun but never thought about using it in the home, this same prosecutor would crucify the defendant as irresponsible, grossly negligent and failing to perform the slightest due diligence with regard to keeping a firearm. He wants the jury to convict not because the defendant erred legally, but because he was too diligent to fall into any legal pitfalls.

A good defense attorney would turn the DA's criticism into a positive advantage by showing the court or jury that the defendant sought advice and/or training to remain within the law. He would argue that taking a human life is an abnormal, high-stress event for the defendant and he was legally advised to use a memorized generic ("boilerplate") statement as the best method to avoid legal quibbling over the exact intent and meaning of a single word or statement.

Rather than worry about the above, it's more important to worry about public statements on forums, emails and in statements to neighbors that anyone breaking in "is gonna leave feet first in a body bag" or "ain't leaving with a pulse". Those kinds of statements are far more damning to a person's attitude than attacking an initial statement.

ltc444
February 25, 2012, 08:39 PM
The question of what to do has been covered in detail in many post.

Since the Miranda warning has been mentioned.

Cops don't have to issue the warning until you are in custody. Basically, until they tell you you're underest or prevent you from leaving anything you say is fair game.

Spats can give you an excellent explanation.

Murdock
February 27, 2012, 08:27 PM
I won't get my gun back? Really?

Think about this. You just used a gun to save your life or that of another innocent person. Maybe the gun cost you $1,750 because it's a gee whiz custom special. You may not ever see it again because it's been taken into evidence.

So what? Maybe it was the finer features of this precision instrument that saved your life, enabling you to shoot it well enough to out perform your attacker. That's why you bought it, right?

If so, it has served its purpose in the infinite complexity of the cosmos. Your legal fees are going to be much more significant than the gun. You'll probably have to sell it to pay for the lawyer anyway.

It's a detail. A trinket. You are alive and able to buy another one. Let it go.

m&p45acp10+1
February 27, 2012, 08:40 PM
For those thinking you will not get the gun back you are very, very wrong. In fact most cases you would get it back withing 24 hours of a grand jury deeming justifiable use of force. They have to by law regardless of the state.

I personaly know someone that shot and killed an armed intruder. The day after he was cleared by the grand jury he drove to the county sherriff's office, and withing 30 minutes he was driving away with his gun. He did not get the remaining 5 rounds of ammo that were in it the night it was turned over to the LEO's.

Glenn Dee
February 27, 2012, 09:16 PM
Your firearm is your private property. As long as you have the legal right to posses it... The police can NOT take it permenantly. However as long as it holds some criminal evidentiary value it may be held. A person who is no true billed, or cleared by a coronors jury should get his property back forthwith. Local jurisdictions may have some rules allowing them to hold on to the property for a period of time... In one jurisdiction the firearm may end up being destroyed before it can be returned. That same jurisdiction will usually remove any permission to posses the firearm (Revoke the permit) A person could make a civil case I guess.

While IMO you will probably get the gun back, but it may be marked by the vouchering officer, and may not have been stored well or taken care of.

BillCA
February 28, 2012, 07:11 AM
Since the Miranda warning has been mentioned.

Cops don't have to issue the warning until you are in custody. Basically, until they tell you you're under[arr]est or prevent you from leaving anything you say is fair game.

Unless the rules have changed (yet again) recently, that's not quite true.
The have to issue the Miranda warning before they interrogate your or ask you questions . Typically the warning is given at the time of arrest or shortly thereafter. However, if the cops don't ask you questions, they don't need to recite the Miranda warning. You can be cuffed, transported and booked into jail before you hear the warning.

If they haven't issued the Miranda warning and haven't asked questions, if you make a voluntary utterance about the crime, it will be admissible.

federali
February 28, 2012, 08:27 AM
In all probability, all cartridge firing firearms at the scene will be taken as evidence until the ballistics boys identify which firearms were used or discharged. As an investigator, you don't want to be flayed on the witness stand for assuming that only the gun in the home owner's actual possession was used.

Another point to remember is that once you have defeated the intruders, you are now responsible for them and you may not permit further harm to be inflicted upon them by family members. It is wise to call 911 and advise them that medical assistance is needed. That 911 tape will be entered as evidence so choose your words carefully and do what you can to prevent the wounded intruder from dying if you can safely do so.

TexasJustice7
February 28, 2012, 08:47 AM
JoneeMan: What is deemed reasonable largely depends on people in your area. Police in your area may or may not have a positive attitude towards civilian gun overship. The same goes for District or County Attorneys, Sheriffs, and Judges, except they're elected officials, and they will likely side with the popular opinion of the people around you. Politics should not be underestimated in this regard.

While this may be true regarding the attitude toward civilian gun ownership, my opinion is (and I have 2 brothers in law enforecement, one deceased), any law enforcement officer who is opposed to civilian gun ownership is in my opinon not a legitimate law enforcement officer. I believe that part of their duty as a police officer is to protect and defend the Constitution of the United States. If he does not support the right to keep and bear arms then
it is my opinion that person should never have been allowed to wear a badge in the first place. If I knew of such a one, I would attempt to garner support to have them removed. But then I don't know of any, and I live in Texas.

Frank Ettin
February 28, 2012, 11:54 AM
...my opinion is ..., any law enforcement officer who is opposed to civilian gun ownership is in my opinon not a legitimate law enforcement officer. I believe that part of their duty as a police officer is to protect and defend the Constitution...That's very nice. But the topic of this thread is dealing with a difficult situation in real life. So one's notions about how things should be in an ideal world are off topic.

m&p45acp10+1
February 28, 2012, 06:46 PM
I learned of a different twist on a local case today from a friend in the local PD.

A man defended his home when a young gang banger kicked in his front door, and came into the home. The home owner was in the kitchen cooking dinner when he heard the noise of the door being kicked in. He had his CCW on his person. Upon him coming into the living room another intruder with the mentioned gangbange came into the door. Both turned and charged the home owner. The homeowner then fired 2 shots from his .38 spcl. snubnosed revolver. One intruder was hit the shoulder, and the second round grazed him under the left arm. Both suspects fled on foot.

The homeowner called 911 imediately afterwards. He told the responding officers he was dead sure he hit one. There was a bit of a blood trail in his driveway. The police never took his gun away. He had a cabinet full of vintage revolvers, and shot guns. None were taken into evidence.

A few minutes later the ER staff of the local hospital contacted the police there was a young male being treaded for GSW.

The bullet in the gangbanger's shoulder was recovered. The homeonwner turned his gun into the local PD for then to send in for ballistic testing. After it was tested it was photographed and returned to the homeowner.

Results were the fired bullet in gangbanger's shoulder matched the ones from the ballistic testing. Gangbanger is county awaiting trial. The acomplice was captured two days ago. Acomplice is being arraigned tomorrow.

Skadoosh
February 28, 2012, 07:08 PM
Excellent! Has this story gotten any media coverage?

lawnboy
February 28, 2012, 07:21 PM
Is there a resource available for 2nd-amendment-inclined lawyers in our particular areas?

I'd be more interested in a lawyer who regularly defends those charged with or detained during the investigation of criminal offenses.

That's what we're really talking about here; preparation for the possibility that you may be charged with a crime when you believe you were acting in self defense.

If you've ever used a lawyer for real estate or whatever you can use them as a starting point. Ask them for a referral to someone who handles criminal cases. Lawyers network just like the rest of us.

Frank Ettin
February 28, 2012, 08:21 PM
Is there a resource available for 2nd-amendment-inclined lawyers in our particular areas? I'd be more interested in a lawyer who regularly defends those charged with or detained during the investigation of criminal offenses...And actually, you're looking for a lawyer with some even more specialized experience. Defending a case based on a plea of self defense is fundamentally different from defending the usual criminal case. So you will really want a criminal defense lawyer with some experience putting on a self defense case.

In an ordinary criminal prosecution, the defendant doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

For example, if the crime the defendant is charged with is manslaughter, the prosecution must prove that the defendant were there, fired the gun (if that was the weapon used), intended to fire the gun (or was reckless), and the guy the defendant shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that he wasn't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

But if you are going to be claiming self defense, you will wind up admitting all the elements of the crime. You will admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified. So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense.

Most criminal defense lawyer, including some of the top ones and generally including public defenders, have had little or no experience handling a self defense case. It's such a different animal from the usual "I didn't do it and you can't prove I did" defense in most criminal cases. If you are claiming self defense, you will want a lawyer with experience handling self defense cases.

m&p45acp10+1
February 28, 2012, 10:24 PM
Skadoosh the story got about two paragraphs in the back section of the small local paper. The part that the home owner managed to hit him made it in. As well as the fact that perp #1 was caught at the hospital. Other than that the only other media coverage was a pargraph in the back of the paper the other day when perp #2 was caught, taken to jail, and charged. Oh and what his bail was set at. (Lets just say unless he has very wealthy family he is staying in jail till his court date.)

The home owner comes out the range that I am a member of usualy every couple of months and shoots several guns over the space of a few hours.