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Old January 29, 2012, 08:48 PM   #35
Senior Member
Join Date: September 15, 2004
Location: Madison, Wisconsin
Posts: 644
Interacting with the police after you are involved in a self defense shooting

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:

(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.
You can only learn from experience if you pay attention!

Last edited by Jeff22; January 29, 2012 at 08:53 PM.
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