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 carried this topic over to this edition of our journal.
Summers Compton Wells LLC
8909 Ladue Rd., St. Louis, MO 63124
For the most part, whatever the attacker is saying should be irrelevant to the defender’s actions. The case should not be tried at the scene. Many people are in jail who tried to talk themselves out of trouble with police, although of course most of them were truly guilty.
In any case, the defender will likely not be in an emotional state to allow him or her to make a counterargument. Refusing to say anything is not a good choice because the Supreme Court ruled in 2013 that silence can be used against a defendant who has not been read his Miranda rights and is not in police custody. The defender should state some basics to the responding officers, such as:
- That man attacked me with a gun/knife/club;
- He had an accomplice (if applicable) (and give a brief description) who ran in that direction;
- I thought he was going to kill me/I was in fear for my life (words to that effect);
- There is his weapon/shell casings/other evidence;
- That person(s) saw the incident;
- I am injured/short of breath/having pain in my chest and left arm and need medical attention (if applicable, and remember that a stress-induced heart attack is possible hours after the incident, especially for an older defender, and spending the night in a hospital is better than spending it in a holding cell);
- I am too upset to talk more now. I want to cooperate fully and I will be happy to give a statement after I have had a chance to calm down and speak with my attorney. Until then, I invoke my right to have my attorney present during questioning and I invoke my right to remain silent.
THEN ACTUALLY REMAIN SILENT. In no case should the defender say anything to investigating officers (detectives) without counsel present. They are trained interrogators who can get the defender to say things he or she never intended if the defender enters into a dialogue with them.
The defender should not allow the responding officers to interrupt him and ask clarifying questions during his brief statement. This will lead to a dialogue that cannot help the defender. The defender may say, “Please let me finish” and simply give the brief details without expending or expounding.
Mark Seiden, PA
3948 3rd St. S., Ste. 387, Jacksonville Beach, FL 32250-5847
This is a real conundrum and cannot be answered by applying a simple hard and fast rule.
Police officers will generally make a decision to arrest or not within a short time after their arrival. If the person who was shot is a known criminal with a long arrest and conviction history, their decision will be easier to make. If the person who was shot had a weapon, that will make their decision easier as well. In those instances, a simple, “He attacked me or was attempting to rob me” should suffice until your lawyer arrives.
However, if the person who was shot is a decent, upstanding citizen and the shooting was the result of a
dispute over a parking space or followed an incident of road rage, the standard rules of waiting to speak with your attorney prior to giving any statement would apply.
James B. Fleming
Fleming Law Offices, P.A.
PO Box 1569, Monticello, MN 55362
There is any number of issues that could impact such a dangerous decision. First and foremost, is the defender’s attorney present and, following an assessment of the defender, has the attorney given the green light to say anything to the police other than, “I will not give a statement, or answer any questions until my attorney is present?”
If the attorney is not present, then I will say no to the idea of getting involved in some free form, “he said, he said” dialogue. Cops don’t get to make charging decisions; I’ve said it many times before. There will be time to make an accurate statement, with counsel present. Minutes after the incident goes down, while the potentially perception and memory distorting effects of adrenaline are still present, is not that time. Your statements, answers and descriptions of events might be horribly inaccurate, and you won’t know it until it is too late. The, “But the cops will think I’m guilty of something” argument holds no water with attorneys, because we know that no one cares what the first responder cops think.
This isn’t easy. Nobody said it was going to be.
John R. Monroe
Attorney at Law
9640 Coleman Rd., Roswell, GA 30075
It is a mistake to try to plead your case to the police. After just shooting someone, you will be pumped full of adrenaline and somewhat emotional. It is not the time for rational discussion of the events. The police are not there to judge you, and they are not the ones that ultimately will judge you.
If you make no statements at all, the police cannot testify at your trial about what you said (or didn’t say). If you make a statement, you are beholden to the police to remember correctly what you said (and maybe you’d rather they got it wrong). If you do make a statement and they misquote you, there’s nothing you can do about it.
Michael B. McFarland
Michael B. McFarland, P.A.
421 Coeur d’Alene Ave., Ste. 1L., Coeur d’Alene, ID, 83814
I’m having a hard time imagining any situation where the defender/victim should say anything other than the following:
- That’s the guy [pointing to the attacker].
- He broke into my [car/home/office/ etc.].
- He attacked me.
- There’s his weapon [pointing to the attackers gun/knife/club/etc.].
- I’m: a) injured [display injury], or b) not injured.
- I intend to fully cooperate.
- I am [defender identifies self and provides ID].
- I will give you a full statement once my attorney is present to advise me.
Repeat as often as necessary and say nothing else. Legal counsel can then determine what, when, and how much to disclose.
Joseph R. Sullivan
Sullivan Law Office, PLLC
320 E. Neider Ave, Suite 206, Coeur d’Alene, ID 83815
Although there is certainly a benefit to being able to control the police’s first impression, the risk of providing a full statement to police before speaking to your attorney outweighs that benefit. Whether or not the attacker is making a statement, an armed defender should identify himself as the victim and identify the attacker as such as well as telling the police about any ongoing safety concerns and identifying potential evidence. This does not include “what happened” before the shooting. Because of the phenomenon commonly known as “critical incident amnesia,” it takes a full 24-48 hours and one or two sleep cycles to fully develop and create what will become the armed defender’s long term memory of a critical incident.
Providing a statement about “what happened” before that process has begun, in the immediate aftermath of a life or death situation, guarantees that the armed defender’s statements will contain unavoidable discrepancies or misperceptions. Regardless of whether the other guy talks first, I always recommend a full debriefing and consultation with counsel before an armed defender gives a full statement to the police. Such a statement must be recorded and given when counsel is present and able to advise the armed defender. The fact that the attacker talks first will actually make it more likely for the attacker’s statement to be inaccurate or inconsistent while the armed defender will have the opportunity to give one, carefully considered, statement to the police.
Shawn A. Kollie
Short Law Group, P.C.
12755 SW 69th Ave., Ste. 200, Portland, OR 97223
280 Court St. NE, Ste. 290, Salem, OR 97308
I advise my clients to keep any of those responses short and simple as in, “I feared for my life because of___ and was forced to defend myself/others, etc.” The more fact and situational specific issues should not be told to law enforcement until the individual has an opportunity to speak with a lawyer, calm down, and make sure their statements are true and accurate to the best of their ability.
Kelly & Chapman
PO Box 168, Portland, ME 04112-0168
The wisdom of comedian Ron White comes to mind immediately. “When the police arrived, apparently, I had the right to remain silent–but I didn’t have the ability.” Ron’s story begins when he was just thrown out of a bar, and the cops arrive. He wasn’t able to help himself by talking.
There is almost no reason to “blab” to the police. If you have done your due diligence in use of cellphone to 9-1-1, they will already have your side of the story. Also the bad guy will be making up things very quickly. He may say things inconsistent with the 9-1-1 recording, the physical evidence (footprints, shell cases, blood spatter) and the eyewitnesses. Do you REALLY want to clue the bad guy in that what he’s saying is inconsistent with the facts?
I would just keep it to: “Gentlemen, I hope you are recording ALL of this. I will be giving you my full cooperation just as soon as I speak with my attorney. Thank you for responding so quickly.”
If the fellow is wounded and talking, he will talk with even less inhibition in the ambulance once he is administered morphine. While this may be inadmissible against bad guy in the criminal case, it may exonerate you in the civil case.
Terrence R. Rudes
Attorney at Law
216 Adams St., Port Clinton, OH 43452
A real world definition of “victim” is the first person to call 9-1-1. Given the propensity of the police to believe the first story that they are told, I believe that it is best for the defending citizen to make the 9-1-1 call. In that call, although it is extremely difficult to cut off the questioning and discussion with the operator, the citizen should very briefly explain what caused him/her to use deadly force. After a short description of the reason for the use of force, shut up regarding the facts and if possible hang up and contact their lawyer. While awaiting the arrival of the police, the citizen defender should use their cell phone camera, to video or photograph everything possible of the scene, including the bad guy’s weapon, shell casings, bullet holes, and witnesses. This will preserve evidence that may be taken by bystanders or lost in the commotion of the arrival of police and ambulance people.
The citizen can expect to be cuffed and stuffed and then ignored by the police while the bad guy creates his fictional story of the events. Due to his being shot, he will have more access to the police early on. The early call to the attorney, who responds to the scene, can allow the attorney to provide information to the police to aid in establishing the chain of events from the evidence, while not requiring the citizen to be interrogated by the police before he/she can get their breath and collect their thoughts.
The foregoing presupposes that the defending citizen has been trained in the shooting aftermath. It is always dangerous to encourage or allow a person who has just been though a traumatic event to talk about it.
From the assumed facts in the question, 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?” Not an exhaustive list, but interviews with the client should be extremely limited with the attorney providing the information to the investigators to the extent possible.
- Availability of counsel to be present to talk to the defender;
- The amount of confusion regarding the facts and circumstances of the incident; may include cross racial shooting, hostiles at scene;
- Number of persons involved on both sides, spouse of citizen defender vs. friends of the bad guy;
- Number of witnesses, biased and non-involved;
- Availability of physical evidence at the scene to corroborate citizen defender’s account of events;
- How distraught the citizen defender is;
- How cogent the facts related by the citizen defender to the attorney – I don’t know it happened so fast ... inability to relate anything but “I shot the guy;”
- Relationship of the attorney with the police officers or agency;
- Perceived bias of investigating officers at the scene;
- Presence of media and if they are being allowed access to the investigation or citizen defender;
- Bias of media in the community and their history of twisting information to create sensationalism of the events.
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580
The issues influencing whether to speak to police are the same regardless of whether the attacker has or has not been shot by the armed citizen. The attacker is going to lie to police about everything, and will claim that he is the real victim. So the citizen has to decide if he wants to try and avoid arrest by giving his full version, or, does he want to protect his legal position as much as possible by stating merely that he defended himself from attack, and then keep asking to speak to his attorney. And for the same reasons as last month, I advise the latter.
One should say only that they defended themselves from attack, and then ask for their attorney. An arrest today is far better than facing a needless conviction tomorrow due to inept handling of questions from police. Almost no one, including attorneys, can competently navigate such an emotionally-charged question/answer session after a life-threatening event. As example, some years back I witnessed a shooting, and when I was interviewed by police minutes later I could not remember my own phone number.
Severe emotional shock and legal analysis skills, don’t go together. And the police know that very, very well. That’s why many police unions have contracts that allow officers involved in shootings a 24-hour period before they are questioned by authorities. The ordinary citizen gets no such privilege. They have to create it for themselves, by not talking.
Lynne Torgerson, Esq.
310 Fourth Ave S., Ste. 5010 Flour Exchange, Minneapolis, MN 55415
They should always invoke their right to remain silent. Always.
They can always give a statement later, after they have retained counsel, and after they have a chance to get the discovery. What they say could be disastrous.
Meril “Gene” Anthes, Jr.
Gunter & Bennett, P.C.
600 West 9th St., Austin, Texas 78701
This one is super easy and I’m sure I won’t be the first to say it. Do not even think about this issue and whether to give a statement to police if you shoot someone. First call 9-1-1, then call a lawyer.
As the shooter you will be in shock. You may not know it or realize it, but you will. Talk to a lawyer first before giving any statement to police. He or she will be able to decide better than the shooter as to what a statement should say or whether it should be given at all. A good lawyer will come out to the scene immediately. The last time I got a call from a client about a home shooting I was on scene within the hour. The police will wait.
Marc S. Russo
Attorney at Law
25 Plaza St. W. #1-K, Brooklyn, NY 11217
Certainly if the shooting happens in his home and the attacker is a stranger, he should be most cooperative and give a statement because if arrested, and the case went to trial and the jury was instructed not to hold the defendant’s silence against him, the fact is that they will hold it against him, especially under those circumstances.
However, if say, the shooting happened in a bar or outside, with no independent witnesses he should make a minimal statement, but clam up if it seems the police are going to arrest him. In that situation it could well be one person’s word against another’s. In the former situation there is at least a chance they won’t arrest the defender if he comes clean.
This of course assumes that one lives in a rational jurisdiction that respects gun ownership and self defense, and isn’t afflicted with mindless hysteria about the race or age of the victim, regardless of the facts. Unfortunately this is an assumption that can’t be taken for granted.
Mitchell Lake, Esq.
Rachel M. Baird & Associate
8 Church St., Ste. 3B, Torrington, CT 06790-5247
If someone in the process of committing a crime has just been injured severely enough by the intended victim to be taken into custody alive, I’m going to make the reasonable assumption (I know...but we all have to base our behavior on the information we have because we seldom have all the information we want...therefore, assumptions...) they probably aren’t running at 100% mental capacity and will make mistakes which will benefit the good guy.
My default position on making statements in the immediate aftermath of a situation is “STFU.” (That does not stand for “Special Task Force Unicorn. ” If you don’t, you should read the Monster Hunter International series by Larry Correia, he is a pro RKBA author, so support him...)
Someone who makes a statement to the police voluntarily, without the advice and assistance of counsel, in the aftermath of a situation in which they are likely not at 100% mental capability and in the absence of knowledge of what the criminal has stated about the situation does so at their own risk.
The default of STFU is only departed from in situations in which a departure from it will be of benefit to the person making the statement. The immediate aftermath of a situation will be confusion, emotion, delayed assessment of injuries, stress and unfamiliar situations.
I do not feel an adequate cost/benefit analysis can be made in the situation presented; therefore, STFU and let the criminal speak as much as they want to.
You can present a statement at a later time with the advice and assistance of counsel.
Arthur R. Medley
Attorney At Law
P.O. Box 5544, Dothan, AL 36302
The only way the attacker is giving his side of the story and telling the police after he’s been shot is that the defender called 9-1-1 and during that call he should have simply stated that he has just been attacked but that he shot the attacker and that police and medical personnel are needed to respond.
Upon arrival of emergency services the defender should simply point out the injured attacker and give a general description of the events. Nothing else should be stated without first having an attorney present. If the attacker wasn’t shot and only held at bay while 9-1-1 was called then again, take the initiative, say I was just attacked and have defended myself and have the attacker in custody, please send police. Keep the gun on the attacker until the police arrive and secure the scene. Let them see you keeping the attacker under guard. In that scenario again give only general and brief statement as to what happened and if further questioning is necessary, contact your attorney.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for discussion of a new facet of this topic.
Click here to return to April 2016 Journal to read more.