Attorney Question of the Month
This month's question continued over from last month’s journal, and was posed by a Network member who is also a firearms instructor. He asked--
If a Network member is accompanied by a friend or family member at the time of an armed self-defense incident, is it preferable that the 9-1-1 call be made by the associate? Why or why not? What information should the associate provide to the police dispatchers?
Gregg Schaaf, Esq.
Law Office of Gregg Schaaf
7 Washington St., Cumberland, MD 21502
As a general proposition, I would prefer that the 911 call be made by client's associate rather than by my client. Again, as a general proposition, meaning that there may be exceptions, I would typically prefer that my client retain the flexibility to tailor his statements or testimony after he has had a chance to confer with counsel. It is very rare for a prospective defendant to talk himself out of being arrested. It is very common for people to talk themselves into being arrested, and/or for things said to be used against the prospective defendant. Generally speaking, in most situations, a prospective defendant should say very little except that he is choosing not to answer questions until he has had the opportunity to confer with counsel. This should be said politely but the person saying it should persist in saying it when the assertion seems to have been ignored. This situation, an armed self-defense incident, isn't an exception to this.
The person who engaged in armed self-defense should not be surprised to be taken into custody. Accept it as part of the process instead of trying to avoid it. Also assume that any telephone call you make while in custody, even to an attorney, will be recorded. Thus, do not recount the events on the phone to anyone. Ask counsel to come visit you in custody if that is at all possible.
As for what information the associate should provide: his location; his identity; whether anyone needs medical assistance or the number of people who need assistance; and then to ask the dispatcher what she needs to know...i.e. to offer to answer questions. Following that, the caller should ask if there is anything the dispatcher wants him to do.
Summers Compton Wells LLC
8909 Ladue Rd., St. Louis, MO 63124
The member who acted in self defense may be the best person to make the call, but only if he or she can convey the necessary information without babbling on too long or conveying inaccurate information.
A friend or family member may be as stressed, or more so, than the member who responded to the attack. A friend or family member is likely to be less well trained than the member and more likely to say something that, while innocent and well-intended, may put the defender in a bad light with the police, prosecutor, judge, or jury. Of course, every situation is different and if a friend or family member is more composed and understands what to say, he or she might be the better choice to call 911.
A goal of the call, in addition to obtaining assistance from law enforcement and medical attention (if needed) is to be listed as the victim, or complainant on the initial police reports, which may avoid a criminal charge, although nothing on the call will overcome bad facts. In addition, if the member is charged, the stress of the event will be conveyed in the caller's voice on the 911 recording in a way that cannot be replicated later, which, if the court allows it to be admitted to evidence, may be convincing and paint a good picture for a jury.
Regardless of who makes the call, the information to be conveyed to the 911 operator will likely include:
- The caller’s name and location.
- A request for police and, if anyone, including the attacker, is injured, an ambulance.
- A brief description of the event, emphasizing “he tried to kill us,” “I thought we were going to die,” “we were attacked by a man with a gun [knife, etc.],” or something else that is accurate and conveys the reason for responding with deadly force or whatever level force was used in defense.
- If applicable, a description of any attackers who left the scene, their direction of travel, a description of their vehicle, and anything else that will assist law enforcement locate them.
- Perhaps a description of the caller and friends and family members at the scene, including a physical description and clothing.
- A valid reason to end the call, such as I need to assist my family, attend to an injury, etc., along with the ability to hang up and not answer the return call from the 911 operator.
- Andrew Branca, Massad Ayoob, and others have provided good information about handing a 911 call by saying enough without saying too much, as well as dealing with responding officers. I recommend their books to members, who may also want their family members to read them. The member might be injured and not be able to call 911.
Law Office of Nabil Samaan
4324 “A” Illinois Ave., Fair Oaks, CA 95628
I think it is better to have the associate call 911 for several reasons:
- By the associate calling the shooter has not produced any evidence that could be used against him/her.
- The fact that the shooter has not documented any facts allows him to gather himself, maybe even call his attorney, and then make a statement to law enforcement.
- Subtle facts that the shooter may not realize in the heat of the moment may be overlooked but can be documented once law enforcement arrives all the while the defense lawyer could be contacted or even in route to the scene.
- Any mistakes made by the associate during the call can't be used against the shooter.
- While some instructors insist the shooter call, as a lawyer I would prefer my client not say anything to anyone until counsel is advised/present.
2614 NE 56th Terrace, Gladstone, MO 64119
I always like to be able to stand up in court and ask the jury, “Why would my client call 911 if he was the guilty party?” Sometimes this is not possible. Sometimes the person who has the gun has to use the gun and the other person needs to use the cell phone. Division of labor.
There is always the danger that under stress the shooter may blurt out incriminating. Anything said to 911 is a voluntary statement and can be used against the caller.
Ralph D. Long, Sr.
Attorney at Law
120 County Road 230, Florence, AL 35633
It would be my preference that my client have no direct contact with law enforcement after a shooting. If an error is made in reporting an incident, it may be later labelled a lie or an effort to cover up some action by the defensive shooter by some overly aggressive “anti-gun” investigator, District Attorney. If there is another person to report the use of force, I’d recommend that the other person do so.
Further, if there is a downed assailant or others offering threats, it is better from a tactical standpoint for the shooter to stay engaged with the threat until the police arrive.
Nathaniel G. Raff
4060 Black Bart Trail, Redwood Valley, CA 95470-6236
This is more a practical question than a legal one. Who calls 911 will be governed by the particular circumstances of the case, with the primary consideration being the safety of you and your loved ones. The educational materials provided through the Network cover what to do in this crucial period after a self-defense incident. I refer the reader to those valuable materials.
Ideally, the person calling 911 will use language that establishes the theme of the case as one of self defense (or defense of others). If the threat of harm is over, the caller should describe the actions of the perpetrator rather than the defender. For example, instead of, "my husband shot a man..." start with, " a man tried to rob us..."
Describing the actions of the perpetrator that precipitated the self-defense action early in the 911 call is more likely to set the narrative in favor of the defender.
The DA in my jurisdiction will almost always consider the 911 recording, if there is one, with other evidence when deciding whether to file a case.
It is easier said than done in the heat of the moment, but a loved one having the presence of mind to set the narrative in favor of the defender is a good way to reduce the chances that a case will be filed after a self-defense incident.
A big "Thank You!" to our affiliated attorneys for their contributions to this interesting and educational discussion. Please return next month when we have a new topic of discussion to take up with our affiliated attorneys.
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