Attorney Question of the Month
For the past few months, this column has been dedicated to protecting the armed citizen’s rights after self defense. We started by studying what if anything the armed citizen should tell the 9-1-1 operator. Now we wrap up a multi-month discussion of statements, if any, given to investigating officers. The new question is–
If a Network member has threatened to use force in self defense up to and including display of a firearm without shooting, what should he or she say or not say to responding law enforcement officers?
Jon H. Gutmacher, Esq.
Attorney at Law
1861 South Patrick Drive, Box 194, Indian Harbour Beach, Fl. 32937
You ask what a member should say if the police respond to a situation where you have threatened to use deadly force, but not discharged the firearm. In Florida, this is a very delicate question because in 2014 the laws of self defense were radically changed such that a “threat” of using deadly force may only be made if reasonable to stop the imminent commission of a “forcible felony,” or if reasonable to stop or prevent imminent death or great bodily harm to yourself or another. This should mean that “in the hand” display will almost always be a “threat,” and technically, even if such is “reasonable” in a non-deadly force situation, it will not be legal.
So, the starting point in determining what to say is whether saying anything beyond, “I really need an attorney before I can speak to you” is a good idea. To be honest, if there is any doubt that the situation was less than a forcible felony or one involving a reasonable belief you were faced with death or great bodily harm, you better read my book (Florida Firearms Law, Use & Ownership), because there’s no way I can answer that in a few paragraphs.
On the other hand, if the situation does fit Florida’s new laws, then the old advice is the same: Advise the officer you were forced to use self defense, and were in fear of your life. If the other person was armed, make that known. If you don’t know, or the cop says they weren’t, never acknowledge they were not armed, even if you did not see a weapon. “I don’t know” is not an acceptable answer. “I thought they were armed” is the absolute most you should say before saying, “I really don’t want to discuss that further, without first seeing an attorney.” Unless they were in a bikini, discussion on this point will only lead to disaster.
Point out any evidence that shows a point of entry, or what crime the other individual was involved with. Show any injuries you received. State you would like to cooperate more, but are really shaken up, and need to speak to an attorney before doing so. Do not go into details of what you did beyond the generalization of using self defense. Details sink ships! However, if the other individual was involved in a robbery, forceful burglary, rape, kidnapping, or attempted homicide, then you are likely just a “witness” and the conduct of that individual should be fully described. However, if it ever seems you are being targeted as having done something illegal, you must immediately state you need an attorney before answering any more questions and other than your name, date of birth, social, phone, and address, shut up!
Brendan K. Lahey
Charles Lahey and Brendan Lahey, Attorneys at Law
502 W. Washington, South Bend, IN 46601
I think I would generally advise that statements to law enforcement in a situation like this be restricted to the criminal conduct of the other party that caused the fear of death or great bodily injury instigating the responding threat of deadly force. Say what they did, say you want to press charges, say you want to speak to an attorney before answering any other questions, particularly regarding the draw or display of a weapon.
Person: “He tried to rob me, I was in fear for my life, I want to press charges against him.”
Cop: “He says you were just mad at him and stuck a pistol in his face.”
Person: “He was trying to rob me. Sorry, guys, but I need to speak to a lawyer before I can make a more detailed statement.”
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580
To answer this question, you need to choose from two crucial options:
(1) Do you want to try to avoid arrest as much as possible, or
(2) Do you want to protect your legal rights as much as possible?
If #1 is most important to you, then you tell the police exactly what happened. The reason for this is that the perp is going to lie his *** off about how you pulled a gun on him. He is going to lie, and lie, and lie, and lie. Not particularly because he hates you, but because he knows what you don’t: that the first guy to tell his story to the police usually gets the most credit. So if the perp says such and such, and you say nothing, the police are likely to believe him and arrest you. So, if arrest is what you are trying to avoid, tell your story.
If you choose this option, understand that the police will question you over and over to see if you change your story. And you will be speaking at a time when you are in no real emotional state to be saying anything. But once you go down this road, you are committed. Clamming-up thereafter will be assumed to be an attempt to conceal, and only will make the police more suspicious of you.
If #2 is most important to you–your ultimate legal fate–then you say NOTHING except that you will make a statement to your lawyer, and ask for your lawyer. Every time you are asked anything, just answer that you want to speak with your lawyer. Give them your ID if they ask for it, but don’t answer anything. And this is my advice to everyone.
If you’ve already made a 911 call and reported the incident, then you’ve said plenty already, and even if you haven’t called 911, you don’t need to say anything at this point...and should not. Let them arrest you; you’ll make bail that afternoon or the next day, or may not (under the circumstances) need to post any bail. Arrest is not the worst thing in the world. Conviction and imprisonment is far worse, and if you say things that sound goofy, or you contradict yourself badly, or you accidentally mis-speak and say something opposite of what you really meant, or you pull a My Cousin Vinny without realizing it, “I shot the clerk? I shot the clerk?” then you will be very sorry later that you said anything to the police.
Your lawyer will explain later about how you acted responsibly by taking his good advice never to say anything without talking to him first. But your lawyer is not a magician. He can’t magically make disappear anything you’ve already said.
Christopher A. Connelly, P.A.
101 N. McDowell St., #104, Charlotte, NC 28204
Say nothing. Talk to you lawyer so they can vet your story before you attempt to articulate it to police. You may want to think hard even before calling police in the first place. Get to a safe place before calling 911. Consider securing your weapon before meeting police in a neutral place. Assume that they will think that you’re one of the bad guys, as some police don’t like the idea of civilians carrying firearms.
Joseph R. Sullivan
Sullivan Law Office, PLLC
320 E. Neider Ave, Suite 206, Coeur d’Alene, ID 83815
It is important to keep in mind that when the police respond to an incident like this that they have two different objectives. First, the police are going to secure the scene to make sure that it is safe. Second, they are going to conduct a criminal investigation. Deploying a firearm, even when it is not fired, could constitute Aggravated Assault depending on the circumstances and is a serious felony.
The armed citizen should do everything possible to help the police with their first objective, scene safety. This would include advising the police that the citizen is armed and asking how the officer(s) would like to address that. Depending on the officer, they may want to disarm the citizen or have the citizen make the weapon safe. The citizen should not touch or move their firearm without specific instruction from law enforcement to do so. This is for the safety of both the citizen and the officer and will help reduce the likelihood of a secondary confrontation.
Next, the citizen should advise law enforcement about the other suspect or suspects. If the suspect or suspects have fled the scene, the citizen should give as complete a description as possible including the suspects’ physical descriptions, their vehicles, and weapons. The citizen should also identify any potential evidence for law enforcement such as discarded weapons, clothing, or other items of significance. The next part is critical, under no circumstances should the citizen start talking about what happened prior to law enforcement’s arrival.
The citizen should make clear that they are willing to cooperate with investigators but that they will only do so once they have spoken with their lawyer. If the citizen has not already contacted their lawyer, they should request to do so immediately.
Despite the fact that a shooting did not occur, the incident itself was likely still extremely stressful. Because of the physiological responses to high stress situations (often referred to as critical incident amnesia) it is preferable for the citizen to not give a criminal investigation interview about the incident for at least one, and preferably two, sleep cycles. This ensures that the citizen provides law enforcement with the most accurate statement, if any, and reduces the likelihood of providing conflicting or inaccurate statements.
Once the citizen has been able to talk to his lawyer, the lawyer can make the determination whether the citizen will make a statement at that time. If the facts are clear, and the likelihood of criminal liability is low, it may be preferable to give an immediate statement if doing so avoids arrest. If there appears to be criminal liability, it may be preferable for the citizen to refrain from making any contemporaneous statement, even if that means that the citizen is taken into custody. This gives the citizen’s attorney the time needed to conduct an initial investigation and prevent the citizen from making potentially incriminating statements.
To summarize, the citizen should tell law enforcement about any ongoing safety concerns and potential evidence, but refrain from talking about what took place until they have spoken with their lawyer.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month, for the March 2016 edition of this online journal, when we will introduce a new but related question.
Click here to return to February 2016 Journal to read more.