Attorney Question of the Month
Our Network Affiliated Attorneys have been discussing protecting your rights after self defense while calling 9-1-1 for law enforcement assistance. The responses to the question we asked were so numerous that the commentary on this subject has run for several months. We wrap up this portion of the discussion this month with the following comments. The question is–
Assuming the immediate violence is over, the armed citizen and his or her family is safe, should the armed citizen call 9-1-1, and if they do, what should they tell the police dispatcher?
Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Avenue, Phoenix, AZ 85003
I would most emphatically say yes, the armed citizen should call 911 as soon as it is possible after ascertaining that the situation is safe.
The first person to call the police is going to be noted on the police report as “victim one,” whereas the second person to call the police will be noted as “suspect one.” Thus, the nightmare begins.
I would add that, if at all possible, it is a good idea to have someone other than the shooter actually make the call. Let’s say you’re out with your wife when the situation occurs. I would prefer to have your wife call the police rather than you. That call will be recorded and, in almost all states, and most definitely my home state of Arizona, it is statutorily admissible at any trial. It is much easier for me to explain any inconsistencies in my client’s spouse’s statement than it is to do the same with my client him or herself. After all, the spouse didn’t fire the shot(s) and didn’t have the same sensory input as my client.
I’ve had clients who did everything perfectly, by the book, except they did not call the police after the confrontation (usually where shots were not fired, where it might be even more important to be the first caller because of the lack of other evidence). When they returned home later in the evening, there were squad cars full of police officers waiting to arrest them. If they had only called the police at the scene, I am certain they would have avoided the problem in the first place. Let’s make sure we start off with the best possible first impression in such a horrifying situation.
Brenna, Brenna & Boyce, PLLC
31 E Main St., Ste. 2000, Rochester, NY 14614
There is no “one size fits all” response here and members need to know and understand that. If, e.g., there’s a home invasion at 3 a.m., and there’s a shooting response, one should call 911 immediately as there may be other perpetrators still in the area, and request assistance ASAP. When the 911 operator asks “what happened?” the answer – if any – will depend on what the law of self defense / justification is in that particular jurisdiction. If deadly force is authorized inside of one’s personal dwelling for a home invasion, then there’s little harm (generally) in responding.
If however, the shooting took place in a public area, e.g., a parking lot, the client should first see if a bystander can (if anyone already hasn’t) make the call. But I would counsel against saying anything about what happened. As I tell my clients, “it’s better to spend a few hours in jail until I can figure things out, than you spending years in prison because something you said was misconstrued.”
The best example of this was and remains the movie, My Cousin Vinnie – the two “yutes” in an effort to explain the truth, talked themselves into a murder rap!
Stephen T. Sherer
Sherer & Wynkoop, LLP
730 N Main St., PO Box 31, Meridian, ID 83680
I would say as little as possible. Call 911 and say that an intruder has been shot. Give the address.
Unfortunately, the police responses are as varied as the range of personalities. The police officer whose parents’ home was invaded and mother raped will respond very differently from one raised in an atmosphere where guns should be owned only by law enforcement.
For that reason, and also because most people will be traumatized if they have to shoot someone to defend their home, I would defer saying much else until speaking to an attorney, but more importantly until such time has passed when you can discuss the incident without passion. For some this might be an hour; for others, a week.
Even if that week is spent in jail, it is better than stumbling over your words in a gush of emotion, when those words may be turned against you on the witness stand.
Peter N. Georgiades
Greystone Legal Associates, P.C.
1712 E Carson St., Pittsburgh, PA 15203
There is no question that calling 911 is the appropriate thing to do, once one is physically safe. The reasons are many, but I will offer two:
1) Calling the police to report a shooting might or might not put one in the position of being the “good guy” in the eyes of the police, but NOT calling will surely result in the police, prosecutor, judge and, if there is one, the jury looking upon one who gets into a shooting and walks away as irresponsible at best. More likely they will think at the time one knew he had something to hide. I have represented individuals who drew weapons in self defense, did not shoot anybody, and who did nothing wrong, but who were charged with serious crimes simply because an overwrought bystander or hysterical putative “victim” reported things they may have believed they saw, but which never in fact occurred. I am completely convinced these people would never have been charged with any crime if they had reported the incidents in which they were involved; if they had just called and said “this is what happened, I wanted you to know.” That way, when the authorities got the call, the report from the “victim” would have been received with an appropriate measure of skepticism by the authorities, and been better investigated.
2) In some circumstances, where someone has been seriously injured during an incident, and our hypothetical citizen defending himself had a hand in inflicting those injuries, that individual may be charged with a crime if he fails to summon help when he can safely do so.
All of the arguments I have heard about waiving constitutional rights and incriminating oneself strike me as highly theoretical and improbable, particularly if one exercises any common sense when making the report. While these arguments make interesting (to some) gun board fodder, they simply do not stand up as a practical matter.
In my opinion, the time spent masticating the limits of one’s supposed rights not to call is better spent understanding when to call and what to say.
William J. Powell
Jackson Kelly PLLC
310 W. Burke St., Martinsburg, WV 25401
I think it is pretty straightforward, but difficult to do under stress. The basics must be provided. Name, location, your identifying characteristics, and that you were attacked and had to defend yourself are what needs to be heard. The police need to know what you look like when they arrive.
I would tell the police only the basics upon their arrival, and the firearm used for defense should of course be secured or you risk being shot. The more detailed version should be done with the help of counsel. I would note that the standard, “I was in fear for my life!” is not particularly effective in my view. It sounds “canned.” More natural language like “That guy was trying to kill me!” in the more likely natural and honest response.
Benjamin M. Blatt
P.O. Box 221, South Bend, IN 46624-0221
Absolutely dial 9-1-1. Not only will your failure to do so possibly be construed as an attempt to conceal a crime, but if you shoot at, wound, but do not kill an attacker who subsequently flees, and said attacker dials 9-1-1, you become by default the assailant in the eyes of the responding law enforcement officers.
Things to say: Someone attacked/assaulted/ broke into my home/ tried to kill me. I shot him.* I need medical assistance.** Please send the police and an ambulance.
*If you acted in self defense, acknowledge the shooting. The last thing you want is for law enforcement to respond to a burglary call and trip over a body.
** You’ve just been involved in severe emotional and possibly physical trauma. You may need medical attention and not even realize it. Get checked out by the EMTs. Insist on that.
Things not to say: I wasn’t really sure what he was doing, but I shot him anyway. The punk had it coming. Send the coroner. He shouldn’t have brought a knife to a gun fight, etc., etc.
Attorney at Law
Box 153, Mt. Vernon, AL 36560
I feel that you should call 911 immediately. You should tell the dispatcher that you are the victim. You should also give the physical address of your location, a description of yourself and any family members present, as well as a description of your assailant.
Stay on the line until the officers arrive. Please remember that home invasions, robberies, et cetera, are priority calls for law enforcement. The responding officers may be plain clothes if no patrol units are nearby, so staying on the line with the 911 dispatcher can prevent misidentification by either party thereby saving not only your life but the life of the first responder.
Kielsky Rike, PLLC
4635 S. Lakeshore Dr., Tempe, AZ 85282
If at all possible, they should call their attorney and explain what occurred, and the attorney can summon the police. If the involved gun owner calls, they can bet on the 911 call being played in court, and they may not be in the best state of mind, and their statements may significantly damage their case.
Their attorney, on the other hand, cannot be compelled to divulge anything said in the attorney-client call, and the attorney, who makes a living out of the careful choice of words, can convey the necessary information to emergency personnel, without risk of incriminating their client.
Should the attorney be unreachable at the critical time, the involved gun owner should ask someone else to make the call. In any case, the only information offered should be the location, that, (if true) a person is injured, (if true) emergency medical services are required, and (if true) that there has been a disturbance but everything is calm now. 911 operators will pepper the caller with lots of questions, so the less they know, the better their answer: I don’t know. It may not be a bad idea to plan with close friends on possible scenarios, so that after an incident, should the attorney be unreachable, a friend not at the scene is asked to place the call and provided only the bare minimum information required to summon emergency medical help.
Marc S. Russo
Attorney at Law
25 Plaza St. W. #1-K, Brooklyn, NY 11217
You should certainly call police if you’re forced to shoot someone. If you don’t it’s certainty that you will be arrested when the shooting is discovered. Unless you live in remote area, the shot(s) will be heard and others will call. It’s a good idea, even if you’re not the first caller to have it on record that you called as soon as possible. I would recommend that the armed citizen calmly explain that they won’t make a statement until they consult with an attorney. Not making any statement will probably result in at least an initial arrest. However, after legal consultation and an assurance that your self defense claim is on firm ground, you should be cooperative and talk–with your lawyer present.
If one feels confident about the shooting being legitimate–e.g. an armed burglar who broke into your home–you may want to give the police a basic version of what happened, especially if there are other witnesses to support what you say. However, you can still defer detailed questioning until your lawyer is present. This may (possibly) forestall an arrest. However, if the circumstances are murkier, I think it’s probably better to wait for an attorney, even if you are initially arrested.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for a new question about the next step in post-incident concerns.
Click here to return to December 2015 Journal to read more.