Attorney Question of the Month
For the past few months, this column has been dedicated to protecting the armed citizen’s rights after self defense. This month we asked our affiliated attorneys about the next step in the timeline–
Assuming that the defender has just needed to shoot an attacker in self defense, and the attacker is alive and talking, telling his side of the story to police, what are the issues influencing whether or not the armed defender should give a statement to police in order to counter the statement being given by the wounded attacker?
There were so many answers that we will address this question over the next several months.
Timothy J. Priebe, Esq.
Priebe Law Firm, LLC
1465 Kelly Johnson Blvd., Ste. 200, Colorado Springs, CO 80920
The question seems to assume that the defender and person who has been shot are near enough to each other to hear and interact. If this is the case, then the police have done a bad job of scene management as the parties should be separated.
Whether this is the case or not, I think the basics still apply. Call them Ayoob’s Golden Rules or whatever, I would still stick with them. The defender will not be in a position to discuss the details of the shooting right after the event. Keeping one’s mouth shut will be that much harder when the guy who has been shot is now on the floor bleeding and pointing his finger and accusations at the defender. This will make most people even more anxious to “explain” themselves. This is especially true if the police are attempting to bait the defender into making a statement. This is not the time to do any explaining!
Let the attacker make all the statements that they want. His/her mouth will be running also and perhaps they will say something that they will regret in the future. Let it happen to them and not to the defender.
David J. Brown
Attorney & Counselor at Law
P.O. Box 34, Bingen, WA 98605
A reasonable approach to the situation presented is very “fact specific” to each individual scenario. This cannot be stressed enough. While I am generally inclined to favor simplicity in situations that are over in seconds but later subject to examination and critique for months or even years, the initial interaction with law enforcement in the hypothetical being discussed can be aided by certain helpful approaches. These approaches will be discussed below.
How you say it is almost as important as what you say. I would maintain that in a jurisdiction like the State of Washington, it is critical. Washington prosecuting attorneys charge all felony crimes via the filing of an “Information.” It is in the prosecutor’s absolute discretion to deal with a given case however they see fit, subject to certain ethical obligations. There is no opportunity for a grand jury to decide that a fellow citizen was just put in an awful situation, and decline to indict (charge) the armed citizen. Empaneling a grand jury for common criminal matters has not been used in Washington for more than 60 years and isn’t likely to come back any time soon.
Somewhat related to the grand jury issue is the absence of meaningful preliminary hearings in Washington. In many jurisdictions, if there is not a grand jury involved, there will be a very meaningful hearing at the beginning of the case, where the prosecutor must in essence “prove his case” to a lesser standard than a jury trial but still present evidence, sworn testimony by actual witnesses, etc.
In Washington, probable cause (the level of proof needed to get a case started) is most often established by a sworn statement by the investigating officers. It may contain hearsay, unreasonable conclusions, material omissions of critical facts and other matters of concern. Keep in mind that much of this is normal in the early stages of a criminal investigation, and not likely done for any malicious reasons, but it is all the judge gets to see when he makes a finding of probable cause which then enables an accused person’s prolonged detention. That’s it.
Thus the prosecuting attorney must lean very heavily on the findings and impressions of the investigating law enforcement officers. They will tell the prosecutor their impressions of the armed citizen and how he or she handled themselves and responded. Obviously a certain level of agitation and emotionalism will be expected. How one comports themselves once the scene is secure and some time has passed will be crucial. You want to build and maintain as much good will with the investigators and scene personnel as you can. Depending upon the specifics, overall strategy is greatly aided by letting the authorities know that you are a reasonable and prudent person under all circumstances, even the toughest. I realize that this is asking a lot. It may not be possible if you are wounded or subject to certain emotional issues. But you must do your best!
If you call 911, mention that you have been assaulted. Mention that medical aid is needed. If you were assaulted by more than one assailant and only one is down, let the dispatcher know this and be as helpful as possible in identifying them.
Once you interact with law enforcement, let your demeanor and deeds silently witness as to your helpfulness and credibility. Do not be belligerent, dismissive or short with the investigators. You are a law-abiding citizen. Act like one, not a “Moop.” Let them know that you had no choice in the matter, you feared for your life and well-being and say no more (at that time). If you have any type of medical condition that may be exacerbated by the encounter, let law enforcement know (in general terms) and that you need a moment to rest, gather your thoughts, etc. In this scenario, letting the officers know that your lawyer could advise your medical treatment provider of the situation and help address the situation immediately might be the best cause of action.
If law enforcement want you to speak with them, or want you to sign a waiver to speak with them, approach it using the same principles discussed above. Let them know that you plan on cooperating fully and providing a statement, but you take it seriously, and to do it right you need your attorney to assist you. If the attacker is still nearby, even if they are on a stretcher, let the investigators know that you still fear what they are capable of, and would like to be somewhere other than in their immediate vicinity.
If you are arrested and taken into custody, even after doing your best to show your reasonableness, say nothing more. Certainly don’t talk about your case to anyone else at the jail/detention center, including other inmates. Cooperate politely with the booking process, providing your personal data, address, etc. Do not speak about the incident, no matter how innocuous the question sounds. Just be polite and answer innocuously like “I’m doing the best I can,” or something similar. You will likely be subject to audio and video recording the entire time you are in custody, except when speaking to your attorney. Always keep that in mind.
It is best if you have already interviewed qualified local defense attorneys, and have “all hours” contact information for them.
Lastly, before something like the hypothetical presents itself, examine your life and what you can do to mitigate harm to yourself. Even if it is obvious that you acted reasonably and lawfully, if in the aftermath of the lethal force encounter the investigators see an open alcohol container in your car, or a bag of marijuana on the car seat, your credibility has taken a hit. If the judge wants to release you on your own recognizance, but can’t as you have a three year old warrant out for you due to a traffic matter, or unpaid child support, etc. your credibility has likely taken another hit. It may seem unfair, but better to know than not know.
You want the investigators on your case to report to the prosecutor that their bottom line is that you are a decent person who did the best they could in a dreadful situation, that you were appropriately forthright with them, you didn’t lie or embellish, didn’t resist them, endanger them or make their job tougher in any way and that others involved be they paramedics, jail staff, civilian witnesses on the scene, hospital staff or what have you see it the same way.
Attorney at Law
P.O. Box 494, Williamston, MI 48895
It is my advice to the defender, never speak to the police immediately after the event. If the attacker has survived and is speaking I would advise the police that my client will be happy to make a complete statement regarding the event two or three days after the event, the reason being that for lack of a better term the shooting was a “traumatic event.” In such cases people tend to react in two primary ways: one, false bravado, that is they are elated that they have survived the encounter, or two, revulsion and remorse that they have been forced to harm another human being. Either way they tend to make comments that are easily misconstrued and generally end up coming back to bite them.
In addition there is some very credible research that indicates that they will suffer parasympathetic nervous system backlash (my term), a symptom of which is critical incident amnesia. When this occurs, a person will only be able to remember general characteristics of the incident; after they have had one sleep period they will remember 50-90% more detail (correctly) and after two sleep periods they will remember almost everything correctly.
Thus by declining to make a statement until my client has had one or two night’s sleep, it allows him to make a more complete and accurate statement, and it avoids having the police or prosecutors trying to impeach him with his previous inaccurate statements, claiming that the defendant was “elated” they had harmed another, therefore it was not self defense, or that the defendant was remorseful and upset and if it had been self defense it would not have bothered them to do whatever was necessary to survive, proclaiming to the jury that the second state is fabricated because “we all know memory is much more accurate at the time.”
Kenneth D. Willis
2200 East 104th Ave., Yorkshire Plaza Bldg., Ste. 103, Thornton, CO 80233
Talking to the cops after you shot someone in lawful self defense; dealing with the bad guy or his friends spinning lies about what happened.
I guess if you don’t say anything in this situation you are hoping the police will figure out what happened on their own. That’s probably not a good strategy and it sure didn’t work in a Florida case where a landlord was cleaning a house after the tenant abandoned the property, leaving a mess.
While the landlord was there, the tenant showed up demanding his security deposit back. The landlord explained why he could not give it to him until all the cleaning was done and he could tally up the expenses. This angered the tenant who went to his vehicle to retrieve a tire iron. Using the tire iron as a weapon he first went into the bathroom and started bashing the porcelain fixtures to pieces. He then turned the tire iron on the landlord, approaching him in a fast walk and hitting him in the head. In reasonable fear for his life the landlord drew his legally carried .357 magnum revolver (loaded with .38 special ammo) and shot the tenant twice, who proceeded to stagger out the front door and collapsed on the front porch.
The landlord called 911 and requested medical response for the wounded tenant. He also began administering CPR to try to keep him alive until help arrived. When the responding officers arrived they handcuffed the landlord, who had not yet said anything to them. Soon thereafter a detective arrived and the landlord told him he wanted to give a statement. The detective put him in the back seat of a police car and said he’d be back for his statement as soon as he had cleared the crime scene. Sitting there waiting for the detective to come take his statement he recalled being told once never to talk to the police until your lawyer is present. When the detective returned he told the detective he had changed his mind and would have nothing to say.
Meanwhile the tenant’s common law wife was spinning a tale to the cops about how they had just come to request the return of their damage deposit and the landlord flew into a rage and shot her husband for no reason. There were other witnesses on the scene: the landlord’s girl friend and her 14-year old son. They saw what really happened but were so stressed out and in shock at what they had seen they could barely talk and never said anything to counter what the tenant’s common-law wife was saying. The tenant’s common law wife continued her hysterical rant. When the landlord decided to clam up the police were left with only one explanation of what had just happened. A hysterical woman telling them how violent the landlord was and how scared she was and how her husband never had a chance to even defend himself must have been powerful.
As a result, the landlord spent 18 months in jail awaiting trial and was very nearly convicted of murder. Were it not for a highly gifted legal defense lawyer and Massad Ayoob who gave expert testimony that helped the jury understand what had really happened, this entirely innocent landlord may have spent the rest of his life in prison. It cannot be over stated what a close call this was. If you didn’t know, a life sentence in Florida means life. You will stay in prison until you die. If you should get the death penalty, although it may take years, in all likelihood you will be executed. When the detective took the stand the landlord’s attorney asked him if he’d ever seen a murderer giving CPR to the person he’d just shot. The detective said, no he hadn’t.
There were many things the landlord could have said and done that might have helped him and might have even prevented him from being arrested. First, he could have explained in general terms why he was the victim and the tenant was the aggressor who threatened him. He could have pointed out the obvious that he had been hit with a tire iron just after witnessing the tenant tear apart a bathroom. If the tenant had made verbal threats, which is likely, he could have told the officers what the tenant said and that the threatening words combined with the way he was wielding a tire iron as a deadly weapon made him fear for his life. He could have told them he never drew his firearm until after the tenant had viciously attacked him with a deadly weapon. He could have pointed out the wreckage in the bathroom and told the police that the tenant had done that with the tire iron after being told he wasn’t getting his damage deposit back until an accounting of cleaning expenses had been made.
So the lesson from this is, when the scene doesn’t tell the real story of what happened, you have to tell that story. But do it in general terms, “I was attacked, I thought I would be killed, I defended myself.” Then point out any evidence, especially any weapon used by the attacker. If you were hit or stabbed but it isn’t obvious to the police, point out your wounds and how you got them. Point out any witnesses who saw what happened and ask the police not to let them leave without getting their statement.
Categorical fact statements should be avoided. The landlord in this case answered the 911 operator when she asked how long ago it happened by saying, “About five minutes ago.” It had actually been less than a minute. The landlord was in time dilation from the stress of being attacked. He should have said, “Just now.” Later at trial the prosecutor used his statement to claim that he waited five minutes to call 911 because he was staging the crime scene.
Another reason to speak only in generalities after a stressful event is that in addition to all the usual physiological effects of tachypsychia, tunnel vision, auditory exclusion, loss of fine motor skills, there is also something I call “Critical Incident Temporary Amnesia.” I’ve seen people who after a minor fender bender have trouble recalling their own phone number or remembering where they keep their registration and proof of insurance.
This is all caused by the stress hormone cortisol, which is released along with adrenaline. While the adrenaline dissipates rather quickly the cortisol remains for hours and interferes with our ability to remain calm and collected. Attempting to give fine details of what just happened is almost guaranteed you’ll get it wrong in some way.
Once you’ve explained what happened in general terms and how you reasonably feared for your life, tell the police you want to cooperate fully as soon as you’ve had a chance to confer with your legal counsel. That’s when you can go into more detail so long as you don’t attempt to give answers that require you to assume something that might not be completely true. Always remember that any mistake you make in the details of what happened will hurt you. In officer-involved shootings cops may get the benefit of the doubt when they get something slightly wrong, but citizens seldom do.
Every specific fact detail you give the cops, the exact time, distance or other precise details will be checked and if found to differ from what you said the police may conclude you’re lying. That’s why you should initially tell the story only in general terms. Wait for a lawyer to help you before you start nailing down all the specific facts, preferably about 24 hours later after you’ve had a chance to calm down.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for the rest of the commentary we received about this topic.
Click here to return to March 2016 Journal to read more.