Common Misconceptions about the Use of Deadly Force

[JohnKSa]

We’ve all heard someone make a comment to the effect that they know just enough to be dangerous. We’ve all chuckled at the intended humor and then, like as not, moved on without thinking about the truth of the statement. In many cases, the topic being discussed isn’t really important in the overall scheme of life and death, and the word “dangerous” isn’t remotely applicable.

Unfortunately, that’s not the case when it comes to discussing the use of deadly force in self-defense. When someone says that they know just enough about the legal use of deadly force to be dangerous, the statement is very likely precisely correct, regardless of whether the speaker means the comment to be taken tongue-in-cheek or not.

For some reason, people who wouldn’t consider taking medical advice about a life or death situation from someone who admits to only knowing enough to be dangerous, won’t apply the same critical standard to statements offered about the use of deadly force. I’ve listened to and read numerous comments from people who are obviously interested in the legal principles of deadly force but who just as obviously haven’t taken the time to learn even the basics.

What follows is a list of some common misconceptions about deadly force along with explanations to help clarify the applicable truths.

Of course, there has to be a caveat when dealing with a topic that’s this important. I’m not a lawyer, and although I have had a number of lawyers look this material over in a good faith attempt to insure that it is not misleading or in error, it is important to understand that since this is an overview of the topic, there is no way to delve into all the intricate (and often important) details surrounding each of the misconceptions.

I don’t pretend for a moment that this material should be treated as a legal reference source and the reader should not be under the impression that after reading through and understanding the following points that they have mastered the topic. The following information should help dispell some common myths, it should stimulate thought, and inspire the reader to further research on the topic.

Rest assured that what follows is not and is not intended to be completely "airtight" in the sense of a meticulously constructed debate position. It is intended to be a useful, accurate and thought-provoking work. Because of the relatively light treatment of the topic, there are some generalizations, some points which are not exhaustively addressed, some areas where clarity and brevity were given priority over encyclopedic coverage.

Commonly held misconceptions about the legally justifiable use of deadly force.

Misconception: Deadly force laws give citizens the right to punish criminals.

Reality: Deadly force is allowed, under very specific circumstances, to PREVENT the imminent commission or completion of serious violent crimes. It is NEVER legal for a citizen to use deadly force to punish a criminal.

Legal punishment for a crime committed comes ONLY as the result of a trial. Punishment is determined by a set of laws completely and entirely distinct from the deadly force laws and is administered ONLY by the government.

One consequence of having a correct understanding of this principle is that it now becomes obvious that once an attack has completely ceased (whether the victim lived or died or is traumatized and/or maimed or is in good spirits and uninjured), the right to use deadly force no longer exists. The citizen has no right to punish the attacker for what the attacker has done and since the attacker is no longer committing, or about to commit, any crime there is no justification for using deadly force.

It's interesting and informative to note that the 1879 version of the Texas Penal Code explicitly stated that justifiable homicide must take place either during or before the commission of the violent crime. If the criminal was killed after the crime had been completed then the homicide was not justified. The words in the current Texas statutes (and in your own state's laws) may be different, but the principle is the same. Deadly force is to prevent a violent crime or to halt a violent crime in progress and that means it's only justified if the crime is still in progress or just about to begin.

Misconception: Deadly force laws give citizens the right to retaliate against criminals.

Reality: Deadly force laws are about prevention and prevention can happen ONLY before or during a crime, NOT afterwards. It is NEVER legal for a citizen to use (present tense) deadly force to retaliate against a criminal for something the criminal did (past tense).

The past actions (regardless of how recent) of a criminal can never provide legal justification for the use of deadly force. Once an attack has completely ceased and the threat no longer exists the right to use deadly force no longer exists. In the same way that deadly force laws aren't there to allow citizens to punish criminals, they don't allow citizens to retaliate against criminals who have committed crimes against them in the past--even in the very recent past.

Misconception: Deadly force laws give citizens the right to prevent crime.

Reality: Deadly force laws give citizens the right to act to stop certain very serious crimes in certain very specific circumstances and ONLY if the crime is in actually progress or is imminent (will happen immediately or almost immediately if not prevented). Deadly force laws are limited and don’t apply to preventing all crimes, not necessarily even all violent crimes. They aren't meant to give citizens police powers and they certainly don’t allow citizens to act to prevent crimes that may take place at some indeterminate point in the future. They only apply to crimes that are just about to be committed, or that are already in the process of being committed, and then only if the crimes and circumstances of the situation meet the criteria set forth in the law.

People often remark that a fatal defensive shooting is going to prevent future crimes and while there can be truth to the statement, preventing future crimes is not a valid legal goal of a citizen's use of justifiable deadly force.

Misconception: Deadly force laws give citizens the right to enforce the law.

Reality: Deadly force is allowed, under very specific circumstances, to prevent the imminent commission of certain very serious crimes. Once the criminal ceases to engage in criminal activity, the justification for action on the part of the citizen changes significantly. Although it may be legal, in certain limited instances for a citizen to perform some types of actions that roughly parallel those of law enforcement, that is not the purpose of the deadly force laws. Citizens who do not understand this basic fact may end up on the wrong side of the law or in civil court.

For example, if an attack stops and the attacker runs, don’t assume that because a law enforcement officer would try to apprehend the attacker that you should follow suit. The deadly force laws no longer apply once you are no longer under threat of attack. Your use of a weapon under such circumstances could be a criminal act and may also open you to the possibility of civil suit. It may even result in the former attacker being able to react with deadly force and justify a claim of self-defense.

You may consider your pursuit after the attack as a continuation of the attack, but the law probably won’t. Once the attacker breaks off and tries to disengage, your pursuit and re-engagement could be seen as the beginning of a new incident in which you are an aggressor using unlawful deadly force.

Remember, the deadly force laws are provided to allow citizens to save innocent lives in the face of violent attack. Once the violent attack ends, justification for deadly force ends.

Similarly, if a criminal is committing a non-violent crime (or other crime where deadly force is not a legal response) and a well-wishing bystander introduces a firearm, a deadly weapon, into the scenario in an attempt to enforce the law, that could provide justification for the criminal to respond with deadly force and even make a valid claim of self-defense. The fact that a person is committing a crime does not automatically provide sufficient justification for a bystander to display a firearm in an attempt to stop the crime. Doing so in the absence of proper justification could very well be a more serious crime than the one the criminal is committing.

Misconception: Deadly force laws give citizens the right to kill an attacker.

Reality: Deadly force is allowed, under very specific circumstances, to PREVENT a serious violent crime from happening or from being carried through to completion. The death of the criminal is understood to be a possible outcome of the application of deadly force, but while it is an acceptable consequence, it is not and can not legally be the goal.

The defender has the right to use deadly force to prevent or stop certain violent crimes with the understanding that the death of the attacker may result, but that is not equivalent to being given the right to kill. If the attack ceases and the attacker is still alive that is irrelevant—the justification for deadly force no longer exists even though the attacker has survived.

The law acknowledges that you may, under certain circumstances, need to use deadly force to prevent serious violent crimes from taking place or from being completed, but it does not give you the right to kill. Everyone understands that death may result, but while the attacker’s death is acceptable as a possible consequence, it is not the goal—the goal is preservation of innocent life. Keeping the proper goal in mind will help insure that you never overstep the justification in the law. Deadly force laws are put in place to save innocent life, not to legalize killing.

I’ve heard it said that the distinction between the use of deadly force and legalized killing is simply semantics, but that misses some important points. Our goals drive our actions and our speech. It is a tremendous mistake to fall into the mindset that the attacker's death is the goal for several reasons.

First of all, it creates a situation where the defender may take unnecessary risks to kill the attacker when the situation could actually be resolved with less danger to the defender. It can also generate a tendency for the defender to take actions that may later call his motives (and therefore the legality of his actions) into question. Remember the defender’s motive/mindset can be an important component of justifying self-defense. Finally, an improper mindset can increase the chances that the defender will make what appear to be self-incriminating comments to others. That can happen before or after the incident.

Misconception: When deadly force is justified, you should shoot to kill.

Reality: It is generally required that the defender use only the minimum amount of force reasonably required to stop the crime in question from being committed. If deadly force is justified, the law gives you the right to take whatever action will achieve the most effective and rapid cessation of hostilities as long as there’s no “overkill”.

So what’s the best strategy? The best strategy is whatever offers the best chance of halting the attack as fast as possible.

In most cases, professionals advise shooting for center of mass of the exposed part of the attacker. For an attacker in the open, that’s usually a torso shot. For an attacker that is partially obscured/protected, it is the center of the unobscured/unprotected portion of the target. If the head is the only unobscured/unprotected portion of the target then that’s the aiming point. In some unusual cases, a shot to the pelvic girdle may be the best strategy. In the case of the North Hollywood shootout, one of the criminals was taken down with repeated shots to the legs and feet because those were the only portions of the criminal that the police could see and effectively engage.

You should shoot to stop the attack, whatever that means in the specific situation in which you find yourself, and only if it’s the only reasonable way to resolve the situation. The best aiming point is the one that provides the best chance of stopping the attack, regardless of whether or not it’s likely to be the most lethal aiming point. Whether the attacker lives or dies is not relevant—only stopping the attack is important.

It’s also important to understand that a conscious attempt to shoot to kill may also increase the risk of injury or reduce the chances of success. A defender who is fixated on “shooting to kill” could, for example, attempt to shoot at the attacker’s head when the more easily targeted torso shot is available. In practice, headshots are difficult to make and a missed headshot is obviously not nearly as effective at ending a confrontation as a torso hit.

Misconception: When deadly force is justified, you should shoot to wound.

Reality: The explanation for the misconception about shooting to kill gives most of the explanation required to dissolve this misconception, but there is one more concept that should be addressed.

One of the common requirements for the justification of deadly force is the realization by the defender that there is no other reasonable option for preventing the crime in question. If the defender, by his actions makes it clear that he does not believe that the situation was really a life or death scenario (by intentionally missing, or by intentionally trying NOT to cause a serious or life-threatening injury—i.e. attempting NOT to use deadly force), those actions may be legally interpreted as evidence that the defender did not believe that deadly force was the only reasonable option for resolving the situation.

That would, by definition, eliminate the justification for using deadly force and could classify the behavior of the shooter as criminal. In a widely publicized case in Florida, a woman fired a warning shot and was jailed as a result (although she did win the right to a retrial). The courts ruled that she could not claim self-defense because her actions and statements made it clear she hadn’t intended to use deadly force. Since she clearly didn’t feel that deadly force was warranted, therefore she had no legal justification for firing the gun in a situation that endangered bystanders.

You should shoot to stop the attack (not to kill and not to wound), but only if shooting is the only reasonable way to resolve the situation. If you find yourself wondering if you should shoot, if you can get away with “winging” the criminal, or if you should just aim near the attacker to scare him instead of aiming at him, you should almost certainly hold your fire.

Deadly force should be viewed as a last resort. Shooting someone, or even shooting at (or in the general direction of) someone is legally considered deadly force. That is true even if you aim to wound. Aiming close to someone but intentionally missing is almost certainly a criminal act since it implies that there was no intent to use deadly force and therefore eliminates the ability to claim justifiable self-defense to defend against the charges which will be brought against the shooter.

Misconception: We study the deadly force laws to learn how to legally shoot someone.

Reality: We should CERTAINLY study the deadly force laws, but not to clarify what legal steps are required to shoot people legally. We study the deadly force laws so that we don’t inadvertently break the law or do or say something foolish that might make it appear we did something illegal or questionable.

We study the laws to gain an understanding of the general principles behind them. This helps us avoid legal trouble by insuring that our actions are legal, that our mindset is proper and that we don’t put ourselves in situations where our ability to claim self-defense could be compromised should things turn ugly. It helps prevent us from saying or doing things before or after the fact that might be illegal, unwise or that might suggest that we weren’t justified in our actions.

Studying the deadly force laws as a way to ascertain all the ways it is possible to shoot someone without going to jail is completely inconsistent with the focus of these laws. They are not designed to legalize killing, they are crafted to save life, to prevent criminals from killing or maiming the innocent.

Most of us probably have smoke detectors in our homes, some have fire alarms, sprinklers and fire extinguishers. We all understand those items and systems are in place as last-ditch emergency measures in the event that something goes terribly wrong and the house catches on fire. We don’t install them so that we can intentionally set the curtains on fire with minimal consequences. In like manner, self-defense laws aren’t about “setting the curtains on fire without burning down the house”, they’re not about seeing just how far one can go without running afoul of the homicide laws; they are last ditch emergency options intended to provide protection for citizens who find themselves in catastrophic circumstances.

The mindset should be that in a deadly force encounter, we do ONLY what we MUST do to survive the encounter without serious injury. Then, after the fact, we rely on the protection in the deadly force laws provided for just such tragic eventualities.

Deadly force laws are safety nets designed to protect citizens who are driven to their last resort to preserve life in the face of deadly violence. They should never be viewed as a list of "How To:" instructions that detail ways to shoot others without going to jail.

Misconception: The defender must accurately determine if an imminent deadly threat exists to legally use deadly force in self-defense.

Reality: The defender must REASONABLY believe that an imminent deadly threat exists to legally justify the use of deadly force. That is, if a reasonable person in the defender’s place would be expected to feel that they were in imminent danger of serious injury or death, then deadly force is justified even if what the defender believes to be true is not the truth.

For example, an attacker with a realistic-looking toy gun could provide sufficient justification for the use of deadly force by the defender even though the toy gun poses no real threat. The law doesn’t require a defender to instantly and accurately assess the situation, nor does it impose the standard of hindsight on the defender’s assessment. The law only requires that a defender act in a manner that is consistent with a reasonable interpretation of the situation at hand.

Misconception: A citizen who uses deadly force in self-defense is innocent until proven guilty.

Reality: In order to claim self-defense, the defender must admit to committing homicide, or at least, to using deadly force against a fellow human being. Both of those acts are generally illegal. The defender can’t simultaneously claim that he didn’t do it AND that it was self-defense. Before the process of proving that the violent act was justified as self-defense can commence, the defender must first admit to being guilty of committing a violent act--one which under most circumstances is illegal.

That means that, depending on the laws of the jurisdiction involved, the defender will have to prove that the use of deadly force was justified or, at least, present some evidence that supports a claim of self-defense. In either case, if a trial results, the defender must present enough evidence to shift the burden of proof back to the prosecution; and to insure that the judge instructs the jury about self-defense laws.

In some states, and under certain limited circumstances, Castle Doctrine laws may help ease the defendant’s burden of proof, but the defendant may still be required to present enough evidence to demonstrate that the Castle Doctrine laws apply.

Misconception: If the circumstances of the situation are questionable, the defender should alter the scene to help his case for proving self-defense. The authorities will understand and approve. A common version of this misconception is offered as advice: “If you shoot someone breaking into your house but he dies outside the door, drag him back into the house to make the situation more clearcut in your favor.”

Reality: First of all, intentionally altering a crime scene (regardless of the motive) is almost certainly a crime, in and of itself. More importantly, the justice system will usually consider altering the scene of a crime to be evidence of guilt. An innocent person doesn’t need to alter the scene, because he or she will view that evidence as the best witness of innocence. In this day and age, the police will almost certainly determine that the evidence has been tampered with. They most definitely will not understand and approve.

Misconception: If it is a “clean shoot”, “good shoot” or “righteous shoot”, minor circumstances don’t matter.

Reality: The circumstances (both major and minor) are what determine whether or not a shoot is “clean”, therefore they ALWAYS matter. Furthermore, the defender doesn’t decide if a shoot is clean or not. That will be determined by others who examine the circumstances of the situation to arrive at a conclusion. They will also decide which circumstances are minor and which ones are major.

It is certainly true that some situations are more clearcut than others, but it is instructive to remember that the defender has used deadly force against another human being. That is a serious crime in most circumstances. And there’s that word again: circumstances. What makes one use of deadly force a criminal attack and another self-defense? The circumstances. Sometimes what we might even consider to be minor circumstances.

Many people believe that when the police arrive at a defensive shooting, they will automatically view the defender as a hero. In reality, most of the time when the police respond to a shooting, the shooter is a criminal. When the police show up, they’re preconditioned to view the shooter as the bad guy and the person on the ground as the victim. The circumstances will exonerate the defender or put him/her behind bars, and the smallest details can be significant in establishing/verifying the defender’s intent and actions.

Studies have shown that the defender’s training, the weapon used, previous statements by the defender about the use of force, even the defender's gender--in fact, virtually anything that has even a peripheral bearing on the subject of self-defense or intent can color the opinions of jury members and may be brought up in court by the prosecution if they feel it will help their case.

Misconception: If the shooting is justified, the defender is home free and shouldn’t expect to suffer any negative consequences.

Reality: In my state, there are a number of different ways a defender could avoid conviction. The police might determine that the circumstances are so clearcut that there’s no need for things to proceed further. A grand jury could “no bill” the defender. The grand jury could indict but a prosecutor could choose not to bring a case. The grand jury could indict and the prosecutor could bring a case but a jury might acquit.

All of those outcomes would be considered by most to indicate that the shooting was justified, but in every case but the first, a wise defender will retain the services of an attorney. That’s not free, nor is it inexpensive.

In the last scenario, when a trial results, the cost to the defender could easily run into 6 figures, could also cost him his job, his home and would obviously be expected to have other major and adverse impacts on his personal life.

Don’t forget that the significant negative psychological impact of using deadly force against another human is well-documented and commonly experienced. Family members of the defender may also suffer psychological problems, particularly if they witnessed the violence. Finally, a defender may find that he is treated differently after the shooting. He may be avoided or shunned by those he knows and interacts with daily.

A justified shooting can easily destroy the defender's personal life, financial status, mental health, and professional life.

Misconception: If the shooting is justified, the defender enjoys civil immunity due to state law.

Reality: In my state, there is a civil immunity clause in the deadly force laws. The law states that if a self-defense shooting is justified the defender enjoys civil immunity. But there’s one little catch in the law. There’s nothing in the immunity law that explicitly states what “justified” means.

Does it mean the police thought it was justified? Does it mean that the grand jury decided to no bill the defender? If the prosecutor chooses not to bring a case, does that mean that the shooting was justified? An acquittal might be considered to be obvious evidence of justification, but not even that is apparently a sure thing. Besides, that would be a small consolation given the expense and other penalties associated with a criminal trial.

At a legal seminar, I pressed an attorney for clarification as to what precisely constitutes justification under the state civil immunity laws. He felt that a grand jury “no bill” would qualify but admitted that was just his opinion and that precedents would have to be set by case law before a certain answer could be provided.

So what protection does civil immunity provide? In my state, and in other states where such laws have only recently been passed, the answer is that it may not even be possible to accurately determine when we fall under the protection offered by the laws and when we don’t. Don’t assume that you’re protected. You should plan on having to show, in civil court, by a preponderance of the evidence (a simple majority of the evidence) that the shooting was justified. Keep in mind that is a much higher standard than what is required to be acquitted. Acquittal in a criminal case results from a reasonable doubt of innocence even if virtually all of the evidence points to guilt, while a civil case can only be won if the majority of the evidence is in your favor.

Misconception: Deadly force isn’t just about self-defense, it can also be legally used to protect property.

Reality: Using deadly force to protect property is a losing proposition. That is true even if the shooting is ruled justified and the defender is not convicted.

I live in Texas which is somewhat unusual in that the state Penal Code provides justification for the use of deadly force in limited circumstances to protect property. A careful read of those laws is eye-opening.

The title of the Penal Code section notwithstanding, the law is as much about about defending life as it is about defending property. The list of qualifying crimes includes, for example, aggravated robbery and arson, both of which offer significant opportunity for injury or death to innocents. Furthermore, the law makes it clear that deadly force is only authorized when using any other means to prevent the property damage/loss or to recover the property would expose the defender to a substantial risk of death or serious bodily injury.

In most cases when this section of law could be used to justify deadly force, deadly force would likely also be justified under the self-defense section of the Penal Code. Even Texas law, unusual as it is, is much more restrictive than people typically believe.

Besides, the hard truth is that even if you live in a jurisdiction that allows the use of deadly force to protect property, an accurate understanding of the potential mayhem that is the aftermath of a justified use of deadly force makes it clear that virtually no possession can be worth that suffering. Legal costs, the possibility of civil suits, the potential for negative psychological impact, the possible adverse effects on personal, professional and family life are staggering compared to the prospect of replacing property.

Even if one ignores everything other than the potential financial penalties associated with mounting a criminal and/or civil defense, it is immediately apparent that in virtually every case, replacing property is FAR less expensive than shooting someone to protect it.

[doofus47]

Add a bit of lawyerly feedback and this seems like sticky thread material....

[KyJim]

Really great post explaining things in easy-to-understand terms! One point regarding this statement:

Misconception: The defender must accurately determine if an imminent deadly threat exists to legally use deadly force in self-defense.

Reality: The defender must REASONABLY believe that an imminent deadly threat exists to legally justify the use of deadly force. That is, if a reasonable person in the defender’s place would be expected to feel that they were in imminent danger of serious injury or death, then deadly force is justified even if what the defender believes to be true is not the truth. . . .

In most circumstances the laws on use of deadly force are the same whether defending one's self or defending another person. However, some states will hold a person accountable for the actual facts, rather than what reasonably appears to be the facts when using deadly force to defend another person.

In those states, for example, A rounds the corner and sees B holding a gun on C. A shoots B to protect C. It turns out B is an undercover police officer making a lawful arrest. A cannot argue that it was reasonable for her to believe the use of deadly force was justified. The facts are simplified for illustration purposes.

[Frank Ettin]

I agree with KyJim. An excellent summary, John, with Jim's caveat.

I would also add that it's useful to remember that our society has historically taken a dim view of intentional acts of violence against another person. Your intentional act of violence, or threat of violence, against another will be looked on as a criminal act -- unless or until it can be established that you were legally justified. in intentionally threatening, hurting or killing that person.

[Spats McGee]

Another lawyerly concurrence.

Outstanding work, John!

[lefteye]

Despite having no criminal law experience, I also believe consideration should be given to making this a sticky. John's OP, coupled with KyJim's comment, provides a very coherent, cogent and consise explanation of misconceptions about the use of deadly force and its legal consequences. This is valuable information for firearms owners.

[steve4102]

I especially like this one.

Misconception: A citizen who uses deadly force in self-defense is innocent until proven guilty.

I know Frank and others here have covered this a few times, but it still amazes me how many permit holders, are of the belief that all they have to do is clam up and then it's up to LE and the prosecution to prove it wasn't a "good" shoot.

[BobCat45]

Another non-lawyer here, who thinks this is an outstanding post.

I've read much of this before, mostly her on TFL, but in dribs and drabs. This puts it together so that one can assimilate the ideas as a whole.

The ideas of immanent harm being necessary to trigger an otherwise-unlawful act (shooting at someone), using only the minimum force actually required to prevent such harm, reasonableness of the actor's assessment of the likelihood / immanence of the harm, and so on - these go together and mutually reinforce the idea that we live in a society of laws, and that even the laws allowing deadly force are not carte blanche to go overboard.

Anyway enough of my babble - thanks, your post is a resource, and the next time someone tells me scornfully that my CHL is nothing more than "a license to kill" I'll have the link bookmarked to send them.

[ATN082268]

Originally Posted by steve4102

I know Frank and others here have covered this a few times, but it still amazes me how many permit holders, are of the belief that all they have to do is clam up and then it's up to LE and the prosecution to prove it wasn't a "good" shoot.

I don't see anything wrong with telling the authorities, right after it occured, a very brief statement along the lines of: I shot Mr. X in self defense and the evidence and witnesses are here and there. After that I think it is generally a good idea for yourself to "lawyer up." People don't normally talk in lawyerly fashion, especially after a traumatic incident like a shooting, so going into a long winded account of the situation has a high probability of being twisted against you in court.

[JohnKSa]

It is unwise to withhold evidence at the scene that is important to your claim of self-defense. It is also unwise to say any more at the scene than is necessary to establish that you are are the victim, that you are going to be cooperative and to make sure that evidence is not missed or lost. Of course, one should never attempt to "try the case" at the scene with the responding police officers playing the part of judge/jury. The officers are there to collect evidence and arrest suspects, not to determine innocence or guilt.

However, that's not what steve4102 was referring to, nor is it what my post was referring to. Both are referring to the idea that a person who claims self-defense does not get the benefit of having the state bear the burden of proof to show guilt. That's because in order to claim self-defense, he/she must first admit to using deadly force against another human being--something that is, in most cases, a criminal act. A person claiming self-defense must, in effect, begin by admitting to committing an act that, on the surface, at least, will appear to be illegal and then they generally bear the burden of proof to show why what they did wasn't actually a crime. They don't get the benefit of starting out innocent as would usually be the situation in a criminal case.

[Frank Ettin]

Originally Posted by ATN082268

...I don't see anything wrong with telling the authorities, right after it occured, a very brief statement along the lines of: I shot Mr. X in self defense and the evidence and witnesses are here and there. After that I think it is generally a good idea for yourself to "lawyer up."...

We've discussed this here before. See this thread and this thread.

Bottom line is that if you are claiming self defense, keeping completely silent is generally a bad idea. But it is important to know how to handle a stressful situation. That's why training and mental preparation are important.

[Spats McGee]

Originally Posted by JohnKSa

Both are referring to the idea that a person who claims self-defense does not get the benefit of having the state bear the burden of proof to show guilt. That's because in order to claim self-defense, he/she must first admit to using deadly force against another human being--something that is, in most cases, a criminal act. A person claiming self-defense must, in effect, begin by admitting to committing an act that, on the surface, at least, will appear to be illegal and then they generally bear the burden of proof to show why what they did wasn't actually a crime. They don't get the benefit of starting out innocent as would usually be the situation in a criminal case.

To put this another way, in many jurisdictions, self-defense in an affirmative defense. That means that the burden of proving self-defense is often on the defendant.

1. In a garden variety criminal defense:
   1. The State makes an allegation that the defendant broke a law;
   2. The Defendant's best position is often one of "Prove it."
2. In a defensive shooting,
   1. The State makes an allegation that the defendant broke a law;
   2. The Defendant's best position is often "I shot him, but I had a really good reason."

Even where SD is an ordinary, rather than affirmative defense, it's usually a good idea for an SD Shooter to get the investigation off on the right foot. While the SD Shooter's statements should be limited, witnesses have a nasty tendency to vanish and evidence may be overlooked if not pointed out to the police. "Yes, Officer, I shot him, but I didn't have a choice. As I came out of the restaurant, he asked me for money and when I told him I didn't have any cash, he threatened me with a knife and tried to stab me. I think the knife is the one over there by the curb. I saw a couple sitting at that table by the window, watching. White couple, mid 50ish, I'd say. They should have seen the whole thing. I'm going to exercise my Fifth Amendment Right to remain silent now, until I've talked to a lawyer."

IMHO:

1. The best course of action for an SD shooter is to say the right things.
2. The second best course of action is to say nothing.
3. The worst course of action is to say the wrong things.