Talk or Don't Talk: The Aftermath of a Self Defense Situation

[Jeff22]

Here's another discussion on the topic, from a few years ago:

http://thefiringline.com/forums/showthread.php?t=218595

You have to think about this ahead of time. It's best for you to respond exactly as the police are trained: tell them briefly what happened, identify any witnesses, identify any evidence, and then tell them you need to talk to an attorney.

Best to only tell these things to the police ONCE.

Of course, every situation is different and every situation is dynamic. Which is why it's a good idea to research these issues and formulate a plan ahead of time.

[Wag]

At the very least, saying only the right things and in the right way makes your lawyer's job a lot easier.

If you say the wrong things, say too much, say it in the wrong way, it means he's going to have a tougher job with your case and it's going to cost you a lot more.

I know, it's bad to reduce it to a money issue but take every advantage you can.

The most critical point above is, as a responsible gun owner, you owe it to yourself and your family to prepare ahead of time how you're going to deal with the situation. You will NOT have time between the shooting and the time the cops arrive to figure it out.

Great thread.

--Wag--

[pax]

Originally Posted by Wag

The most critical point above is, as a responsible gun owner, you owe it to yourself and your family to prepare ahead of time how you're going to deal with the situation. You will NOT have time between the shooting and the time the cops arrive to figure it out.

Absolutely true!

Here's one excellent resource, titled What Every Gun Owner Needs to Know About Self Defense Law: Link. It's written by Marty Hayes, founder of the Armed Citizens' Legal Defense Network.

Here's another resource: www.useofforce.us . This well written website gives a very nice overview of the important legal issues surrounding the use of force.

pax

[javabum]

You"re under no obligation to tell the police squat....Other than "I want to call my lawyer.But before that ask to be taken to the hospital to be seen by a doctor,Which will give you time to contact your lawyer.

You dont give any information to the police....Remember,"Anything you say can and "Will" be used against you.You say "Nothing".

[Spats McGee]

The two sides of this are: (1) keep your piehole shut; and (2) cooperate and give the police at least enough information to get the investigation rolling in the right direction. There's merit to both. One of the smartest lawyers I have ever known used to say "no matter how thin you pour a pancake, it still has two sides."

If you're even reading this thread, you're on the right track. I say that because if you're reading it, you're at least thinking about what you should do if you're involved in a shooting. Whether you think it best to exercise that Fifth Amendment right against self-incrimination or to cooperate (at least to the extent necessary to nudge the investigation in the right direction), you need to have a plan in place before you're involved in a shooting. You need to stick to that plan. What you do not want is to be weighing the legal factors, and trying to calculate the odds of your success at trial, at 11:30 p.m., in a parking lot, with a dead man on the pavement and a gun in your hand.

[OldMarksman]

Posted by javabum: You dont give any information to the police....Remember,"Anything you say can and "Will" be used against you.You say "Nothing".

Excellent advice--but not if you have shot someone in self defense! It's a good way for a self defense shooter to help himself be arrested and convicted.

I presume from your statement that you have not taken the time to read the above posts explaining why, but perhaps you have and are insufficiently knowledgeable about how the criminal court system works to have grasped the meaning.

I'll try to explain it very succinctly:

In a traditional murder case, the state will attempt to identify a suspect, and it it then up to the state to try to establish beyond a reasonable doubt that the suspect did the deed. The evidence and testimony that they use will be brought to bear to bring about that result. The defendant need produce no evidence at all. The defendant does not want to assist the state by talking to them and giving them information from which they can pick and choose to complete their picture of what happened.

However, if one has shot someone in self defense case, he or she must first admit to having done the deed, and the state need not prove it. He or she must then produce some evidence indicating that each of the elements of justification was present. One more time: the actor, or the defendant should it come to that, must produce some evidence indicating that each of the elements of justification was present.

Without said evidence, he won't even get a favorable jury instruction.

Do you think that the police arriving at the scene will routinely start off by making sure that they miss no evidence that might be favorable to the shooter, if no one says anything about self defense at the outset? If so, think again. They do not encounter that many justifiable shootings.

Such evidence, including favorable witness testimony, may not be retrievable if the police who control the scene to not gather it at the time. If it is not, the result will be devastating for the shooter.

That is the reason for Massad Ayoob's advice on the subject.

He recommends

Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.

Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).

Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.

Pointing out possible witnesses. [You do not want them to disappear without having been identified.]

Then saying something like, "I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."

By the way, criminal defense lawyers often receive their training on this narrow subject from Ayoob.

I suggest that you read pages nine and ten of the summary written by Marty Hayes, the link to which pax has provided above.

For more on what is meant by "each of the elements of justification" see the other link provided by pax.

I hope you find this helpful.

[javabum]

Everything on this forum is helpful in one way or the other.However,in my last ccw class we were treated to a lawyer,whom defends people such as ourselves and were given what we should do in such a case.California is a different animal.And god willing i will never have to be in a situation,but if it so happens i will adhear to what the lawyer said.

But thank you for your advice.

[pax]

One more link. This is to a lengthy but fascinating story of a man who did just exactly as javabum suggests. He said nothing to responding officers.

Link

Of course, this man was in pro-gun Arizona, so things went more easily for him than they might have if he'd been in anti-gun California.

pax

[Nnobby45]

Watch the show. I's a very good revealing show!

Yes, I watch the show. What you say at a shooting aftermath, where you want to establish yourself as the victim, isn't the same as being a suspect in the interrogation room where your lawyer should be sitting right next to you.

Some of the more street wise criminals (and some of the worst) are very much aware of that fact.

Co-operating as a witness is another matter----if you're sure you're a witness.

Question for those who might know a little law:

What would happen if a person were being questioned before being read their rights, and felt they wanted counsil. Could they say they couldn't afford one and ask the system to furnish one. If they did that, would that force the police to either arrest them (and provide counsil) or let them go without questioning?

[Frank Ettin]

Originally Posted by javabum

...in my last ccw class we were treated to a lawyer,whom defends people such as ourselves and were given what we should do in such a case....

I'm skeptical. Did you happen to ask him how many self defense cases he had handled and what the outcomes were? "Keep quiet" is the standard advice and the right thing to do in most, but not necessarily all, cases. And has been discussed at length in this thread and others, self defense is different.

Originally Posted by javabum

...And god willing i will never have to be in a situation,but if it so happens i will adhear to what the lawyer said....

Good for you. However, if I'm ever in that situation, as a lawyer and student of Massad Ayoob's, I'll handle things differently.

Originally Posted by javabum

...But before that ask to be taken to the hospital to be seen by a doctor,Which will give you time to contact your lawyer....

Unless you are actually injured or really believe that you need medical attention, this is a stunningly lousy idea. Don't bet that the police won't be able to figure out that you merely used the request for medical attention as a ruse to buy time. And if they do figure it out, your credibility is gone. If you'd lie about one thing, you'll lie about other things.

If you are pleading self defense, the core evidence for your case will be your testimony. You will absolutely need the police, DA, maybe the grand jury, and if you're unlucky, a trial jury to believe your story about what happened, what you perceived and why you concluded that you had to use lethal force. But if it comes out that you cooked up some nonsense about needing to see a doctor to buy some time, they might have a much tougher time believing you about anything. Playing games or being cute isn't going to help you. It's going to hurt you.

See Massad Ayoob'd column in the August, 2010, Combat Handguns.

[Crosshair]

While one has a right to remain silent, clamming up is what the bad guys do.

It's also what the smart guys do. Or scared people do. Or confused people do. You have nothing to gain by running your mouth off to the cops. You're going to be stressed, and on adrenaline and you are going to screw up and say something wrong.

There is a reason, when cops get into a shooting, they don't interview them right away.

[pax]

There is a reason, when cops get into a shooting, they don't interview them right away.

Actually, about that...

See http://www.laaw.com/highstress.htm

The link above is to an article written for Law Enforcement supervisors, explaining what they should and should not tell their officers to do in the moments after a shooting. Very interesting stuff!

One of the things that struck my eye was this:

All you, as the supervisor, really need to know (from the involved officer) is:

1. Are there any other casualties, other than what are apparent?

2. Are there any other suspects in need of apprehension?

3. Is there any evidence that is likely to be lost or compromised by delay?

4. Are there any witnesses that we need to nail down right away?

... From the officer, insist upon only that information that is actually needed right away. Then, advise the officer that (s)he has the right to remain silent and the right to an attorney, and that (s)he is well advised to exercise his/her rights.

... Get the officer in contact with HIS/HER attorney as soon as possible.

This neatly parallels the Massad Ayoob advice that Fiddletown, OldMarksman and several others have referenced in this thread. Ayoob tells students that if they are ever involved in a defensive shooting, they need to state the following:

[4] So Massad Ayoob recommends:

Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.

Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).

Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.

Pointing out possible witnesses.

Then saying something like, "I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."

In either case, shooters point out the following ~

• suspects
• victims
• evidence
• witnesses
• lawyer up and shut up

Kind of interesting that the advice cops give to each other for what to do after a shooting so closely parallels what we're hearing innocent armed citizens should do after a shooting: point out a few specific things, then shut up. You'd almost think some of the people posting in this thread had really studied this topic ...!

Go read the article. It's really good.

pax

[Glenn Dee]

First off... When police get into a shooting they do make a statement right away. They may not do a lengthy interview, but they do make a statement.

This is a bit of a re-hash of other threads. But it's such an important subject there cant be too much discussion.

As some have stated "SELF DEFENSE" is an affermative defense. The burden of proof is on actor. Not only will you be dealing with black letter law, you will be dealing the police and their personalities, the district atty. and his personality and politics.

As long as you have professional police on the scene your ahead of the game. The police will figure out what happened. The forensics iinvestigation will usually prove your case. The police, and forensics will need a point to start the investigation. I personally believe it's foolish to not be involved at this juncture. This is the time for a simple statement. Not some rehersed scenario statement. Not a demand to speak to a lawyer. Not a request to go to the hospital (unless of course your really ill). But a simple statement. Not answer a bunch of intricate questions.

I know that most people would advise you to say nothing. Thats fine... But you can usually expect the police, and states atty to interpet this as uncooperation or even guilt. It's hard personally, and politically for the police, or states atty.to back down, or change their minds and the direction of the investigation. In the beginning you have the oppertunity to contribute to the direction the investigation will take.

Lawyers, and professionals such as Mr Ayoob base their opinions on cases they have been involved. I know in my heart that Mr Ayoob is a good man and has the best interest of most of us at heart. He is a good man. The cases we all hear about and take direction from are limited to those that didnt go well for the citizen defending himself. I believe that the great majority of self defense shootings go in favor of the armed citizen. We just never hear about them, just as we only hear about the negative aspects of gun ownership and only hear about those who abuse it.

The only advice I stress to anyone is to never lie. Never embelish, and never ever make cocky macho statements.

[SadistAssassin]

Depends....The burden of proof is different state to state...meaning that some states require the prosecutor to prove that you were not in fear for your life...other states require you to prove that you were in fear for your life...

[Frank Ettin]

Originally Posted by SadistAssassin

...Depends....The burden of proof is different state to state...meaning that some states require the prosecutor to prove that you were not in fear for your life...other states require you to prove that you were in fear for your life...

Nope, you've got in wrong in several ways.

[1] Nowhere is the standard for justification, "I was in fear for my life." That would be a subjective standard, i. e., what you, yourself, personally felt. Everywhere the standard is an objective standard, i. e., that a reasonable and prudent person in the same situation would have concluded that lethal force was necessary to prevent otherwise unavoidable, immediate death or grave bodily injury to an innocent. (In some States this standard can be a little different in some situations because of a Castle Doctrine law, or something similar; but is will always be an objective standard standard -- what a reasonable and prudent person would have believed.)

[2] In every State, it will be the defendant's burden (1) to plead self defense; and (2) to at least put on evidence establishing prima facie that his conduct satisfied the applicable legal standard for the justified use of lethal force in self defense. A prima facie case in this context is evidence from which the trier of fact could infer that every element of the defense of "self defense" has been met. But the prosecutor does not have to deal with the question of self defense unless and until the defendant has brought it up and presented evidence to establish self defense.

[3] What varies among States is the nature of the prosecutor's burden once the defendant has raised the claim of self defense and put on evidence establishing that claim. In some States, the prosecutor must overcome the defendant's claim of self defense "beyond a reasonable doubt."

[4] But even in a State in which the defendant only has to make a prima facie case of self defense, and in which the prosecutor must rebut that claim beyond a reasonable doubt, the less convincing the defendant's case is, the easier it will be for the prosecutor to overcome it.

[CapeCodShooter]

Lots of conflicting advice here, and as a retired attorney with more than thirty years of practice I can state that there's a good reason for the conflicting answers. Sometimes speaking to the first LEOs on the scene will help. Often it will hurt. I, and every lawyer, will tell our clients to shut up, because we don't know whether or not they will say the right thing or the wrong thing. We err on the side of caution.

If you choose to speak, speak the truth. A lie will cook your goose. And don't guess. A wrong guess will be considered a lie. Second, the first words out of your mouth, to 911 and to the first responders, will be "[I've been/I'm being] attacked. They [are/were] going to kill me," or words to that effect. Third, if you are taken to the station, tell the LEOs that you will be happy to cooperate but demand your attorney. Say NOTHING further until your attorney arrives. Demand doesn't mean bang the table. It simply means an unequivocal statement that you want your attorney present before you are asked any questions.

Ayoob's recommendations remain the closest thing to the golden rules. Even sticking to Ayoob's recommendations won't establish the defense of justification, though. That's a whole different kettle of fish.

[Frank Ettin]

Originally Posted by CapeCodShooter

...Ayoob's recommendations remain the closest thing to the golden rules....

And that's the way I see it. In the immediate aftermath of a high stress self defense event, no one is really going to be in a position to tailor, under stress, the absolutely ideal response for that exact situation. But Mas' recommendations will cover the ground well.

Originally Posted by CapeCodShooter

...Even sticking to Ayoob's recommendations won't establish the defense of justification, though....

Of course not, but (1) they are consistent with the defense of justification; and (2) they will start things off on the right footing.

[nefprotector]

IMHO, Dont say a thing. Anything can and will be used against you in the Court of Law. Oh I would request an extra amublance you will be in shock.

[Frank Ettin]

Originally Posted by nefprotector

...Oh I would request an extra amublance you will be in shock.

As mentioned previously, this is a really lousy idea. See post 35.

[Blue Steel]

+1 to Mas Ayoob's rules.

Also some more info about police shootings. I think if it's good for police, it's probably good for the armed citizen involved in a legitimate self defense shooting.

Force Science #42: How to assure fair, neutral, and fact finding investigations of officer-involved shootings.

Jeff Chudwin, chief of Olympia Fields (IL) PD and a former prosecutor, says an involved officer should communicate these essentials: the status and location of the offender(s), if known; evidence that needs to be protected; witnesses who need to be isolated and questioned; and any injuries requiring immediate medical intervention. “Everyone at the scene should be carefully checked to see if they need medical care,” Artwohl cautions. “In their heightened state of arousal they may not notice personal injuries.”

In the absence of other reliable eye witnesses who can explain what happened, the involved officer should privately give his supervisor a “very brief, barebones description” of the event–the least amount of information needed to convey the nature of what happened, Lewinski says.

According to John Hoag, a National Advisory Board member of the Force Science Research Center who has responded to more than 40 shootings as a police union attorney, this information can be as sparse as: “He pulled a gun while I was patting him down, I thought he was going to kill me, so I shot him to defend myself.”

It’s important also, Hoag says, that the involved officer(s) delineate the scope of the scene. If a chase preceded the shooting, for example, the “scene” might technically extend over a considerable distance.

“All this information should be given orally and should not be detailed-just enough to get the investigation pointed in the right direction,” Lewinski says. “Officers who may have been peripherally present at the shooting or arrived soon after can provide what they know in more detail, assuming they are not so emotionally affected that their memories may be impaired.”

However, the shooter(s) should not discuss details of the shooting with you or anyone else until they’ve had an opportunity to discuss it with their association attorney and/or their personal defense attorney. “In many agencies it has now become routine for officers to have their own personal defense attorney to represent their interests after any deadly force encounter,” Artwohl says.

[Nnobby45]

In either case, shooters point out the following ~

suspects
victims
evidence
witnesses
lawyer up and shut up

Well, dang, Pax. If you'd said that back at the beginning, it could have save a lot of argu.........err, debate.

[Ruark]

Probably also a good idea to put away your firearm. You don't want the police showing up and you waving around your full house IPSC pistol. Pop the clip out and put it in a dresser drawer. I'm not speaking from experience, but that would seem prudent.

What about the empty cases? Pick them up or leave them where they fell?

- Ruark

[Frank Ettin]

Originally Posted by Ruark

Probably also a good idea to put away your firearm. You don't want the police showing up and you waving around your full house IPSC pistol. Pop the clip out and put it in a dresser drawer. I'm not speaking from experience, but that would seem prudent.

What about the empty cases? Pick them up or leave them where they fell?

Good God, man -- don't tamper with evidence. And no, you don't want to be holding your gun, but don't hide it either. It's also evidence.

Put it down near you, within easy reach (the assailant might have friends or colleagues who might show up before the police get there), but keep your hands off it.

[woodguru]

Enough cooperative base information to give those on the scene a clear picture, let the scene do the details talking. References to being a bit rattled and unsure once the basics are covered is okay, it would be hard to hold you accountable for a later inconsistency if you respond with replies to being unsure and shook up.

In most situations facts will be on your side which helps tremendously.

[lashlaroe]

I have really enjoyed reading this thread through, even the posts that may not seem as well informed, as they have led to some very good information being posted. If anyone reads this thread and hasn't sat down to make sure he/she has a plan in the awful case that they will need one, then something is wrong.

And thanks to all for the links to great reference info on this subject too!

Very informative. Great discussion!