Attorney Question of the Month
For the past several months, this column has discussed armed citizen interaction with police, including making the 9-1-1 call, what to do after threatening someone with deadly force, and after using deadly force against an attacker who survives to tell his side to police. Now, in this last question regarding use of deadly force and the immediate aftermath, we share the first half of the responses from our Affiliated Attorneys as we near the end of this subject with the following 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?
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580
A dead person changes the emotional/legal landscape, for various reasons. The citizen needs to say something, but much less is far more.
I advise as follows: The citizen simply should keep repeating that he was –
1. afraid for his life,
2. that he feels light-headed and needs to sit down, and
3. that he needs to speak with his lawyer.
As example: “I thought he was going to kill me. I can’t even stand right now, I need to sit down. I have to talk to...(lawyer’s first name).”
This is a lot to remember, but armed citizens should think about it from time to time. Write the words, or similar words, down on paper several times–that is an important part of remembering. But don’t keep the writings.
The three statements do very important things. First, they keep the citizen from saying anything else that could hurt them, like a politician going off-script and creating a scandal. Second, they are buying time, which allows the citizen to calm down some more. Third, they establish that the citizen is in shock from a seemingly dangerous threat. Fourth, a person who feels woozy and cannot stand up is suffering an obvious physical manifestation of shock. Fifth, they begin the legal defense process correctly by asking for counsel, and by creating a reasonable belief of serious or deadly harm. In sum, the citizen is coming across as an ordinary person who has just faced enormous danger, which is exactly what the grand jury needs to hear.
That is the best a citizen can do, and really, it will be amazing if they can do it at all. Talking even a little usually leads to more talking, and more talking, etc. And I’ve never seen a situation where endless talking did not hurt a defendant’s case. But, with a dead person, I would say just a little.
Of course, if the citizen actually can make themselves faint and go unconscious as the police begin asking questions, then I recommend that most of all. Pure shock, no talk. Perfect.
Bergstrom & Taylor
1929 Biltmore Street NW, Washington, DC 20009-1509
703-291-8838 or 202-391-0072
My answer is identical to the advice Mas Ayoob gives. “This person attacked me (or threatened me with a deadly weapon). I don’t know if he had any accomplices. [If it is not absolutely clear that the attacker is dead, indicate that you want to press charges if the attacker survives]. The evidence you need to see is here. The witnesses who saw this are there. You know as serious this is. I will cooperate fully with you in 24 hours after I am able to consult with my attorney.” Don’t answer any other questions.
Arthur R. Medley
Attorney At Law
P.O. Box 5544, Dothan, AL 36302
This one is a little different. In Alabama self defense is premised on the level of threat so only a lethal threat or fear thereof can be met with lethal force, so the first thing to say is that this perp threatened to kill me or cause serious bodily harm. Thereafter, the response remains as before, steer the conversation. Say, “I just shot an attacker.” Since it’s unlikely you’re a medical professional then simply say the perp appears unresponsive so send police and paramedics.
Terry L. Lloyd
Attorney at Law
10 Lumpkin St., Lawrenceville, GA 30046
In such a situation, you will have one chance to tell your story to the police to show that your actions were fully justified, and telling it while in the midst of that stressful and adrenaline-filled moment is not wise. All you should say in your initial statement is that you will cooperate with the police, but you need some time to calm down before you make a statement. Then you should go over your story with your attorney to make sure that you cover every aspect of justification. Only then are you ready to make a full statement to the police.
James B. Fleming
Fleming Law Offices, P.A.
PO Box 1569, Monticello, MN 55362
As I outlined in Aftermath: Lesson in Self-Defense (http://www.aftermathbyjimfleming.com/), interaction with first responders should be limited to self-identification and the statement, “I will not provide any statement, or answer any questions until my attorney is present.” And then shut up. This presumes that the armed citizen is in any kind of shape at all, physically, or mentally to make such a statement, and that may not be the case.
With recent Supreme Court decisions on the issue of Fifth Amendment rights and Miranda requirements, interaction with law enforcement officers has become an extremely tricky business. Until you make that statement and then honor it by refusing to engage in any other discussions until your attorney is present with you, anything you say, or actions you take, body language or facial expressions are fair game for use by prosecutors later during a possible trial. Making that statement effectively closes that door. You have the RIGHT to remain silent. Miranda v. Arizona, 384 U.S. 436 (1966) Use it.
Attorney at Law
Box 153, Mt. Vernon, AL 36560
1. I was in fear for my life.
2. He had a weapon.
3. Evidence is there.
4. I would like to speak with my attorney before I make any more statements.
Eric W. Schaffer
Attorney at Law
Schaffer, Black & Flores PC
129 West Patrick Street, Suite 5, Frederick, MD 21701
As a former homicide/violent crime prosecutor who has been involved in investigations and grand jury presentments in self-defense cases as well as a criminal defense attorney for 16 years, I think it is vital to get the police on your side from the very beginning. Often the police perception of who is the victim and who is the assailant can color the whole investigation.
Because of that I think just simply saying you are asserting your Fifth Amendment right to remain silent is not the best course of action even though it is certainly within your rights to do so. Rather my experience suggests doing the following (I’d love to say I thought these up myself but they are based on the teachings of the esteemed Mas Ayoob with some tweaking for Maryland law):
1. Be sure to call 911 and remain on the scene as long as it is safe to do so.
2. Officer, this person attacked me, and I was in fear for my life.
3. Officer, here is the evidence (injuries to you, assailant’s weapon, broken door, etc.).
4. Officer, these are the people who saw it.
5. Officer, you will have my full cooperation after I get a chance to speak with my attorney.
Then be quiet and contact the Network and/or your attorney. Remember once you invoke your rights to counsel and to remain silent, the police cannot legally question you further unless you initiate another conversation.
Attorney at Law
1720 Main Street, Ste. 202, Columbia, SC 29201
This is a very tough question, in part because different states and even different local police departments treat this type of incident differently. It is, therefore, always advisable to contact a local criminal defense attorney to get specific information for the member’s actual location.
Most importantly, I believe it is necessary and advisable to talk as little as possible on the scene. Emotions and adrenaline run very high after any shooting. I often suggest to people that any statement be kept short, simple and to the point. Something along the lines of, “I felt my life was threatened and had no other option but to shoot.” I would then tell the police that I am not in an appropriate emotional state to discuss it further at this time.
There is no need to mention getting a lawyer unless the police continue to try asking questions. Agree to set up a time in the next few days to provide a full statement. Provide all contact information such as addresses, phone numbers, etc. so the police can get in touch in the next few days.
While there is certainly nothing wrong with getting a lawyer (and I obviously think everyone should have one for all police interaction) sometimes it can be perceived as a defensive move. That’s why I suggest not bringing it up in the first few minutes of interaction with police if possible.
Some police are really going to push for answers. DO NOT FALL FOR IT. If the police keep trying, say you will only answer questions with a lawyer present. The thought of spending a night or more in jail sucks! But, saying the wrong thing when emotional can be far more detrimental down the road.
All experienced police have gone through use-of-force training at some point. Very often they are required to describe the situation and details right after. Most of them get it wrong, leave details out or completely make things up. They are not lying in their training, the mind simply can’t process that much information under stress that quickly and will fill in the blanks with what “makes sense.” Experienced police will know and understand this completely. Ask the same officer four hours later, they will most likely provide very clear details and acknowledge what they simply don’t remember.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for more answers to this question.
Click here to return to May 2016 Journal to read more.