Attorney Question of the Month
For the past several months, this column has discussed armed citizen interaction with police. Now, in the final installment of the closing question about use of deadly force and the immediate aftermath, we share the last of the responses from our Affiliated Attorneys to this question:
If an armed citizen shoots and kills someone who threatened them with violence (and it is apparent that the criminal is dead) what if anything should the armed citizen say to police when they arrive?
Summers Compton Wells LLC
8909 Ladue Rd., St. Louis, MO 63124
The answer is very similar to the situation where the attacker is alive and talking, but the defender may feel less of a pressing need to talk. First, the defender should check himself or herself to determine if he or she is injured and, if so, request medical assistance. The adrenaline dump from the gunfight might mask the pain and it may be necessary to physically check for wounds.
The defender should then give the police the basic facts, such as:
- I was attacked by the person who appears to be dead. He pointed a gun at me, pulled a knife, or whatever other facts will show that deadly force was required. He was going to kill me, I feared for my life, or similar words to show the state of mind of the defender are also worthwhile.
- Whether the attacker had any accomplices and, if so, a brief description of them and the direction they headed when leaving, a description of the car in which they drove away, and any other relevant information to help the police apprehend them.
- Point out any evidence, such as the attacker’s weapon, shell casings, bullet marks on nearby property, trees, etc. It is important to point out the evidence before it is picked up, shell casings blow away or moved, stick in the treads of an officer’s boot, or otherwise cease to help provide a picture of the events that required the defender to shoot.
- Point out any witnesses to the attack and shooting. It is important to identify the witnesses to the police before the witnesses walk or drive away. Conversely, if people who appear to be sympathetic to the attacker arrive on the scene after the shooting, the defender should tell the police, “Those people just arrived and were not here when I was attacked and had to defend myself.”
After stating the above, it will be time to say, “I want to cooperate fully, but I am too upset to talk now. I will be happy to give a complete 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 my right to remain silent.” Of course, it will then be necessary to actually remain silent.
If at any time before completing the statement of basic facts the defender is interrupted by the police insisting on more information, the defender should attempt to stick to the basic facts, but it may be necessary to state “I want to cooperate fully, but I invoke my right to have my attorney present during questioning and my right to remain silent because you will not let me state the basic facts. I am too upset to be interrogated.”
The basic facts should be stated only to the responding officers, not to investigating officers. Detectives or other investigators will likely be trained interrogators and it will be very difficult for the defender to prevent himself or herself from saying too much.
If at any time a defender feels unable to deal with the police, it may be appropriate to request medical attention. Stress-related heart attacks can happen well after a catastrophic event such as a shooting incident and having tightness in the chest after having one’s life threatened would not be unexpected. In any case, spending the night in a hospital room will likely be better than spending the night in a jail cell and requesting medical attention may be a good idea if it appears the defender will be taken into custody.
While it may be too obvious to state here, the defender should never consent to a search of his or her cell phone, vehicle, or home. When given the opportunity, and possibly even before the police arrived, if possible, the defender should call home and tell his family not to consent to a search of the home. Of course, contacting an attorney as soon as is practicable will always be a good idea.
The defender, having just shot a person, will be too upset to remember much of this. Persons who carry may be able to help their ability to cope with the situation after a shooting by running through mental exercises and rehearsing the script that will be stated to the police after a shooting.
Samuel C. Feinson
Faber Feinson PLLC
210 Polk St., Ste. 1, Port Townsend, WA 98368
It may be helpful for a person in this situation to inform police of where his or her gun is, and whether he or she is in possession of any other weapons. This indicates to law enforcement that the person is not a threat. The only other words out of the citizen’s mouth should be a request for an attorney. Nothing good can come of speaking to police at the scene of the incident.
Kelly & Chapman
P.O. Box 168, Portland, ME 04112-0168
The involved citizen should say the minimum necessary to summon law enforcement and rescue, and not get shot by responding police.
FIRST, unless you are still in jeopardy, HOLSTER YOUR FIREARM!!!! Alternative: put it off to the side, one step away, butt toward the likely approach avenue; or on the ground directly in front of you.
Indicate the basic nature of what the bad guy did. “I’ve just been attacked/robbed/witnessed another person attacked.”
ALWAYS ask for rescue. Even if you are a medical examiner, you don’t want to process your own attacker. Civilians don’t pronounce people dead. (If asked why later, there is an explanation “for the witness stand,” but you won’t need it there.)
Indicate where you are, and how you are dressed.
Give your cell phone number and ask that the responding officer call if he needs directions–then hang up. Alternative: have someone else call with this information.
When the officer or rescue arrives, say, “There he is,” (pointing to the attacker). “Thank you for responding so quickly. You'll have my full cooperation just as soon as I meet with my lawyer.”
If prodded, say: “I want to talk to my lawyer before I answer any more questions.”
Three nonstandard situations:
- multiple assailants, and one or more got away;
- you are injured or significantly injured;
- third parties try to grab the bad guy’s weapon or otherwise muck up the scene.
That’s for another segment.
Lynne Torgerson, Esq.
222 South Ninth St., Ste. 1600, Minneapolis, MN 55402
The only thing they should say is: I don’t want to talk and I want a lawyer.
Marc S. Russo
Attorney at Law
25 Plaza St. W. #1-K, Brooklyn, NY 11217
If the citizen is in his own home, business, or “turf” and the dead person was indeed armed and actively threatened deadly force, the citizen should cooperate with police, especially if there are witnesses that will corroborate his version of events and he possessed the weapon legally. But if the shooting occurs on the dead man’s turf or even a neutral area with no corroborative witnesses or strong circumstantial facts, he should clam up until he speaks to a lawyer. This goes double and triple if any witnesses are adverse to him or if the dead person isn’t armed.
Guy A. Relford
The Law Offices of Guy A. Relford
1 S. Rangeline Rd., Ste. 110, Carmel, IN 46032
“I will be glad to cooperate fully and give a full statement after I’ve had the opportunity to calm down and my attorney is present. I cannot answer any additional questions at this time.”
And by the way, to the “the cop will think you’re guilty” crowd:
Who cares? The cop doesn’t decide whether to charge you with a crime or not–the prosecutor’s office or the grand jury does that; and 2) that cop likely has standing orders from his or her commanding officers to say exactly the same thing if HE or SHE is involved in a police-action shooting.
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
In Oregon, the best advice I can give someone would to be brief and to the point. “I was fearful for my life (or the life of another). I was forced to use reasonable force to defend myself (or the life of another). I intend to cooperate, but I would like a lawyer before I make any further statements.”
Law Office of Graham W. Kistler
114 Old Country Rd., Ste. 200, Mineola, NY 11501
He should state to the police “I was acting in self defense and I wish to cooperate fully with you but first I want to speak to my attorney.”
Cabranes Law Offices LLC.
840 Lake Ave., Ste. 100, Racine, WI 53403
You politely decline to answer any questions until your lawyer is present. Your lawyer will speak on your behalf, if at all, to the authorities until the time is right for you to make a statement.
Adam J. Schultz
Attorney at Law
211 W. Abriendo Ave., Pueblo, CO 81003
There are no magic words.
I feel that “Hello, my name is John Smith. Ambulance and law enforcement are needed at 333
Memory Lane. There has been a shooting.” (Not “I just shot someone...”) “There is no threat to first responders” (if accurate) is about the best you can do.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for a new topic of discussion.
Click here to return to June 2016 Journal to read more.