An Interview with Massad Ayoob
Interview by Gila Hayes
Before a defensive gun use arises, what kinds of discussions should the armed citizen have with his or her family to prevent a self-defense incident from cascading into an even worse aftermath? Things can really go wrong if family members are caught off guard because they don’t realize what is likely to happen after use of force! Network members frequently ask us what they should tell their family members about aftermath management, and we took those and related concerns to a man who has taught us much about managing the aftermath of a critical incident, Massad Ayoob.
eJournal: Mas, we get a lot of questions from members about what they need to do to help their family members prepare for the realities of armed self defense. Perhaps it would make sense to start our questions and answers by asking what do armed families with children need to consider?
Ayoob: First, with a family, you do have to be especially aware of safe storage of the firearm and all those basic precautions, but when the kids are old enough, the kids need to learn that you don’t speak to an investigator until Mom and Dad have cleared it.
One should be careful not to say things like, “I’ll blow away any ass that comes into the house,” in front of the kids, because little Johnny in third grade is going to be squawking in the schoolyard the day after the shooting, “My Daddy said he was going to blow some ass away and now he did!” Those are going to be discoverable to investigators.
eJournal: Are they?!
Ayoob: Oh, sure! Now, what is introducible in court is up to the judge and the 33-or-so exceptions to the hearsay rule. The point is, once the cops are on it and the prosecutors know the statement is there, they think, “OK, this is telling us we are dealing with a blood-thirsty Rambo and let’s intensify the investigation and be looking more intently at prosecuting.”
eJournal: At what age is it appropriate to let young children know that you might kill to save their lives, and talk with them about related concerns?
Ayoob: At the age they are responsible enough to handle it. As with having pets or teaching the children to handle the gun themselves, there is no one age demarcation. It is not like wow, you turned 16 so you get to apply for your driver’s license. Well, the 16-year old can apply, but not all 16-year olds are created equal, and not all children mature at the same rate. I’ve seen surprisingly young kids that I would trust to be on a range with me with my back turned and a surprising number of adults that I would not!
eJournal: When you as the parent judge that the child’s grasp of the real world is sufficient that having that discussion with them won’t be traumatic, are you pretty frank about it?
Ayoob: Yes, we are. You explain to the kid, “Look, bad things happen to good people. Here’s the deal,” and you’ll find something the child has already experienced, “Remember when Grandma died, how sad it was and what a big blow it was to the whole family? Things like that occur continually in everybody’s life, and we have to prepare to deal with them, even though they are ugly and they are unpleasant. People are going to be relying on you do to the right thing.”
Basically, explain this to the kid just as you explain, “Here is how you use the car and drive it safely, here is how the gun operates and you use it safely, and you know we have a plan at home of what we’re going to do if there’s a fire; we’ve done fire drills here. You know what we are going to do if there is a home invasion. We don’t expect either of those things to happen, but we’ve drilled for both of them. You know what to do and because you know what to do, you really don’t have to fear them as much as other people do.”
Along with that is, “You know if something bad ever does happen, here is what the follow up is going to be. It is entirely possible that there’s going to be an auto accident where Mom is driving but the other driver lies and you’ll be asked questions. It could be entirely possible that something is going to happen at school that you get blamed for.” The basic principles are exactly the same. Tell them, “You explain what happened. If you did do something–for example, you had to strike another kid to keep from being beaten up–you explain that you did so, and you explain that you will lodge a complaint against the kid who assaulted you, point out who saw it, point out any evidence that there might be and if things continue, say ‘I want to call my Dad and my attorney.’ ”
For decades, I’ve taught people what is widely accepted now as the Five Point Checklist: explain that this is what happened, this person attacked me or what ever it was that led to the shooting, indicate that you will sign a complaint, that you are the victim/complainant, not the perpetrator. These two things from the beginning can do a great deal to set the tone of who’s who and what’s what in the eyes of both investigators and prosecutors and obviously later, jurors, should that become necessary.
Interestingly, the same principles work in other respects. The third of the Five Point Checklist would be, point out evidence, the fourth, point out witnesses and the fifth, should interrogation continue, would be, “Officer, you’ll have my full cooperation after I’ve spoken with counsel.”
Now, when my younger daughter was 16-years old, she was driving down a residential street and suddenly a vehicle driven by a chronological adult backs out of a driveway without looking at high speed right in front of her and hits her car. Well, she instantly dials 9-1-1 on her cell phone says, “There’s been an accident,” gets out of her car and as soon as the cops get there, the driver of the other car starts screaming, “This damned kid ran into me, she was speeding, blah, blah blah.”
My kid has already told the officer, “This person pulled out in front of me at high speed, there was no way I could have avoided it without going into the opposing lane and hitting another car. If you need me to make a statement, officer, I certainly will. I think that person and that person saw it.” It was resolved very swiftly in favor of my daughter, in spite of the fact that the usual “he said, she said” would seem to favor the purported grown up over the 16-year old new driver.
The principles of the Five Point Checklist work on many levels and could in many ways be helpful to family members in any number of contacts with the criminal justice system.
eJournal: Sure! It seems that could be appropriate to defending against bullying or the many usual false accusations between children. Besides, using that protocol in other areas of life gives practice applying these coping skills. Maybe it would help put self defense into a more reasonable perspective, because the kid is already accustomed to coping with interventions by authorities using the Five Point Checklist.
Ayoob: Yes, it helps with many things that occur in their lives. We let the kids know also that a lot of the same rules apply to any trouble they might get into.
eJournal: Let’s explore a possibly even more difficult question: What if Mom and Dad aren’t of shared beliefs about self defense? It seems to me a very shaky position, knowing that your gun-hating spouse is going to be asked questions about your defensive gun use!
Ayoob: Spouses are not required to make incriminating statements about their spouses. After a shooting, everybody who knows the potential defendant may be interviewed. They can be subpoenaed into court to testify. Police detectives (in criminal trials) and police investigators (in civil) can say, “Well, the wife said this to me and I tell you now under oath, here is what she said.” It might turn out to be inimical or at least construable as inimical to the defense.
You often have the case of the couple that has different political identities. He sees himself as a conservative and she sees herself as progressive, and maybe they’ve had the argument about “Why do you want to carry that gun? You’ve been hanging out with Republicans too long!” It might not turn out well if her first reaction when the cops come to the house and say, “Ma’am, we arrested your husband” is, “I’ve told him not to carry that gun! I told him that he’d end up killing somebody!” It would be awfully good if the whole family were on the same wavelength, understanding the responsibility of self protection.
I grew up in a family where my Mom was a Democrat; my Dad was a Republican. Every single election, they cancelled out each other’s vote. They went to the polls together, drove home together, laughed, understood and accepted. Neither changed their principles. At the same time, nothing was going to happen where one of them said, “See I told you if you voted for that damned Republican, this awful thing would happen and therefore this is your fault!”
What we are looking at here within the perspective of Armed Citizens’ Legal Defense Network is the person whose action was either deliberately or unintentionally misunderstood, and who ends up falsely accused. This is one of those rare circumstances where different political identities can make a difference. What we have here is a unique area, and the couple simply has to sit down and communicate and say, “Here’s the deal, I’ve made that decision.”
Essentially, there has to be a meeting of the minds where the other party if nothing else understands why the other person has done it. They may disagree but they do understand. Maybe it is, “I hate that you smoke, so we have come to the agreement that you will smoke outside in the carport or the back yard.” That’s understood, but none of that is going to end up in the sort of recrimination or confused statement that could be used against a spouse [in court].
eJournal: You’d think people would be experienced in reaching those kinds of accommodations over differing beliefs within the family! Now that one family member is facing prosecution and possible prison time, the stakes are so high that we have to work together in unity!
Ayoob: If, let’s say the parent was very, very strongly pro life, and the adult daughter said, “Mom, I think you have a right to know that for a number of reasons, I am going to have an abortion.” There might be a heated argument, and for a while, there might be a “never darken my doorstep,” but I would expect if the night after the procedure the daughter came home, the abortion went wrong and she hemorrhaged and was bleeding out, I would expect the mother to know what to do, to call the ambulance, and to be supportive.
Essentially, that is the sort of thing that you are going to have to work out with an anti-gun spouse. You’ll need to understand, first, “We are not so much talking about guns. We are talking about self defense and the right to protect our children.” I assure you, that while it seems stereotypically that the guy has the gun and the woman is the anti-gunner, I have seen many cases where it was exactly the opposite.
Actually, it gets uglier there, because a strong woman and what some might perceive as a weaker male, breaks more stereotypes and that takes people through the roof. Look at our mutual friend Glenn Meyer’s work with mock juries, one of the things he noticed was that juries were unduly hard on highly competent women who physically harmed men, and were also unduly harsh on what they perceived as weak men who had done something stupid or made a mistake with a gun. Each violated a stereotype and our society does not seem to like those who break those boundaries. (See http://www.armedcitizensnetwork.org/images/stories/Network_2012-10.pdf)
There has got to be a meeting of the minds, there has got to be if nothing else a mutual respect for the decision. You might say, “Look what ever happens, if a man broke in and attacked our children, and all I had was a golf club, I would have hit him in the head with a golf club. You and I can decide later if it is worse to bash his brains out with a golf club and he dies, or shoot him in the head with a pistol and he dies, but I think we’d both agree that it is best to stop him from harming our children in what ever way we can. We are going to need to mutually support each other if that happens.” That is the best I can offer.
eJournal: So let’s imagine that the family has survived the incident. The police are there. You noted that a spouse can’t be compelled to give a damaging statement. Does the same apply to kids and does it apply to questioning by first responders? What is police protocol for questioning children?
Ayoob: Make sure immediately that you invoke the fact that, “These are my children. They are juveniles. They cannot be interviewed without my permission. They will be interviewed only in the presence of defense counsel after we have spoke with defense counsel.”
eJournal: In your experience, how do police generally handle questioning small children? Maybe we watch too many police shows, but you get the notion of everyone being separated and their statements taken. Now, you and I will both remember many years ago a certain bad piece of advice that went around under the title of “Green Room.” The idea was that after a home defense shooting, you would gather everyone in the home to coordinate the statements before police arrived. I shudder at the collusive sound of that. What say you?
Ayoob: I am familiar with that, and I was shocked when it came out. The original teaching at that school was this: before you call the police, you take five minutes to gather up the kids and come up with your story. Exactly how they suspend the laws of time and space to achieve this, I do not know. Someone has heard gunfire from your house. Someone has called the police. The exact moment, to the second, of that call coming in will be recorded, as will be the time of your call. Those five minutes will have to be accounted for. You have decided to coach the children what to say before you call police, before you call emergency rescue to assist with the person you have shot. The impact on your indicia of malice and indicia of guilt has just profoundly increased. We do not teach that at my school!
eJournal: As a police investigator, wouldn’t it raise a lot of questions in your mind, if there were four different people at a shooting scene all told you exactly the same thing?
Ayoob: [dryly] It sure would. Especially if it’s by rote, word for word, as if coached by Dad.
eJournal: You mentioned a parent’s right to invoke on behalf of juvenile children. Let’s make the scenario worse—you are injured and not able to intervene. What is common in the police world as regards interrogating young children?
Ayoob: A lot of cops simply would not speak to the kids at that point, except to ask if they are all right. This will not be true of private investigators hired by plaintiff’s counsel who will try to buttonhole kids or anyone they can on the street. I have seen some really outrageous stuff done by private investigators on behalf of plaintiff’s counsel, including one who pretended to be a police officer doing an official investigation. Children are very vulnerable to adult projections of authority.
eJournal: It seems like you might be best off just taking your kids out of state for the short term!
Ayoob: A lot of people do, simply to deal with the trauma of what the kids go through. It is in the newspaper and tomorrow at school, some kid comes up and says, “My Daddy says your Daddy is a murderer! My Daddy says I can’t play with you any more.” That kind of stuff happens.
eJournal: As regards adult family members, what about admissibility of statements made by someone who is so shocked by foregoing events that they state crazy, inaccurate details. Do those statements end up in court?
Ayoob: Excited utterances, spontaneous utterances absolutely can be used.
eJournal: Once some time has passed, is it likely that the spouse or family will be taken into an interrogation room and questioned?
Ayoob: If I were the investigator, I would surely be attempting to interview them. After all, they are witnesses to a homicide!
eJournal: Can the family member decline?
Ayoob: She can, but then there is the concern that, “Well, ma’am, usually innocent people who are victims, as you claim to be, talk to the police. Usually suspects who have something to hide, don’t. Ma’am, you see the position you are putting me in. Wouldn’t it just be much easier if you just answered these few questions for me?”
eJournal: In your work as an expert witness, have you seen situations where the spouse gave statements that made defending the shooter much harder?
Ayoob: Yes, absolutely. Remember, if spouse was cool with handling life-threatening emergencies that had to be solved with deadly force, these issues would not come up. That kind of person would not be likely to blurt something or get something confused, or show a little confirmation bias, “I told him that gun would get him in trouble and get him sent to prison!”
eJournal: We’ve all known people who have that kind of spouse and they dearly love them. They would sooner die than leave that spouse! So we have a problem. We’ve agreed that the spouse is going to be asked to give a statement; we’ve already agreed we can’t “green room” them and tell them what to say!
Ayoob: What you can do is discuss rationally before anything happens before there ever is a fact issue, “This is how we would handle any emergency. This element is different; that element is different, but essentially, we work together, we do the right thing, and if we have worked together and done the right thing, we should get the right outcome. ”
eJournal: We’ve talked about family members present during an incident, but I hear from a lot of members needing to know how their spouse can represent their interests on their behalf if they get in a shooting while they’re apart, with our member perhaps held incommunicado at the criminal justice center. From your experienced viewpoint, what should the spouse be ready to do?
Ayoob: First, for your audience, the trusted other needs to understand that the spouse belongs to the Network and knows the after hours emergency phone number. We want legal representation there as soon as is humanly possible. As a spouse, one of the first things I would ask is who is the lead investigator and in whose custody are you right now. Not just the department, but also the name of the arresting officer and investigating officers.
eJournal: Presumably, the spouse should know the name of their husband or wife’s attorney, but are there any other details that need to be handled by the family at the local level?
Ayoob: It would be a really good idea for the spouse to have a power of attorney, for the spouse to, if necessary, be able to put up the house as collateral if needed for a large bond, things of that nature.
eJournal: I see a certain percentage of people in the Network who honestly don’t have close family members who can shoulder the responsibilities at the local level. In fact, I’m frequently surprised how often someone’s question makes it seem he or she indeed is that isolated. Still, I believe we need to establish and nurture ties in our own communities, because there are tasks that the Network really cannot undertake. If you need the title to your house for collateral, a Network representative really cannot go inside your private dwelling and retrieve it for you. We’re great at getting your lawyer the money or getting an attorney to you, but there are private matters that aren’t appropriate for us to undertake. It often concerns me when a member says there is no one they can rely upon. Some have outlived their families, or for other reasons really do not have anyone serving as the “trusted other” you described. What then?
Ayoob: A good friend, a fellow member of the gun club. No man is an island!
eJournal: Now, before we let you go, what have I failed to ask that people need to know?
Ayoob: These questions are not the usual things I get asked in interviews! Remind people that they need to know the rules and the laws where they live, because they vary. This is the kind of advice you need to get from an attorney who practices in your area.
eJournal: Yes, that is a good assignment to leave us with. You’ve made it clear that many of the issues we discussed–like questioning juvenile witnesses and admissibility of certain statements–is subject to extreme variations city to city, state to state. Our members would do well to take up this and related questions with attorneys practicing in their own states. Thank you!
Learn more about Massad Ayoob at http://massadayoobgroup.com/who/ and watch for the opportunity to participate in one of his courses, hosted all across the nation and listed at http://massadayoobgroup.com/schedule/.
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