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 citizens should tell the 9-1-1 operator. Now we move forward to statements given to investigating officers, if any. 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?
Kelly & Chapman
PO Box 168, Portland, ME 04112-0168
There is a HUGE difference between what is best to say, what we can train people to say, and the couple of things they can remember to say under the influence of adrenaline.
If there is ANY chance you will be where a cop will respond, do NOT have gun in hand, and be sure dispatch knows your name, and your description. Empty hands (both) up waving in the air over your head when officer arrives is a good way to greet the officer.
What is best to say: Name, location, what the bad guy did, his description, that he’s gone, that you’ll talk to an officer when he responds so he can make a report and catch the guy. (You say during the middle of things that you displayed a firearm hoping it would deter him, because you were quite apprehensive at being the victim of a crime, and then he fled before anything more had to be done. [Assumes you are lawfully in possession of the firearm.])
What you can be trained to say: Name, location, what the bad guy did, his description, that he’s gone, that you’re quite frightened and need to talk to someone before you come to the station to give a more full report (hang up and call counsel).
What you can actually do if you hold a card in your shaking hand: Call Dispatch, report that you’ve just been the victim of an attempted (fill in the blank), brief description of the bad guy, and that you’ll call them back from home (then call counsel). If you are not lawfully in possession of a firearm in the place it happened–call counsel first.
Abom & Kutulakis, Attorneys at Law
2 West High St., Carlisle, PA 17013
Our law firm would provide the same advice regardless. “There has been an incident. I want to remain cooperative, but I must wait for my attorney before I may say anything further.”
Keep in mind that law enforcement will likely indicate that things will go smoothly if there is cooperation. This means, “If you talk you will make my job easier.”
While pressure increases when threats of arrests and detention are made, it is prudent to first speak with counsel.
Thomas C. Watts
Thomas C. Watts Law Corporation
500 N State College Suite 1100, Orange CA 92686
980 Montecito Suite 101, Corona CA 92879
Take the best answer that you like regarding the use of deadly force in self-defense situations. Now substitute the notion of self defense with threat of self defense. The answer will be exactly the same.
The former deals with homicide or grave bodily injury; the latter with threat of homicide or grave bodily injury. The latter situation could be construed as Assault or Criminal Threats. Every jurisdiction has a crime dealing with the same nuance although it might be called something different.
My advice to my clients is that they may cooperate by describing the external circumstance leading to the assault, but refrain from subjective statements regarding their own states of mind. This is counter-intuitive to saying nothing at all (the gospel of my profession) but I believe that enforcement should hear of the self-defense circumstances in order to shape the investigation.
McKenzie Law Offices, PLLC
412 W. Franklin St., Boise, ID 83702
This is definitely a scenario where the Network member needs to be the first one to contact police and be identified as the victim. All too often, I find that the police quickly pick a winner and loser (victim and suspect) and the investigation from that point seeks to confirm the winner/loser they have chosen.
We are currently defending a man who was shot at in his home and his attacker fled after missing him. A neighbor heard the shots and called the police. The police drove the neighborhood and were unable to determine where the shots originated.
Our client did not call the police, but instead got a rifle and went outside to sit on the back of his truck. He was worried that the attacker was going to get others and return. It was a very dark night and our client was sitting under the only light around. The neighbor called back to the police and said that her neighbor was in his driveway with a gun, but that he wasn’t doing anything or threatening anyone.
The police came back, but stopped far away and snuck up the streets and yards through the bushes until they were close to our client, at which time they shined their lights on him (which were attached to their rifles) and told him to drop his rifle. They never identified themselves as police and our client was confused and scared. As soon as he realized it was the police, he put down his rifle. The police were screaming at him and then tazed him. He was charged with aggravated assault and is now fighting for his freedom.
The police went through the house and were told about the earlier incident. There was never an investigation into the earlier shooting, even though the assailant was identified and his contact information given to the police. They had already picked their winner. Trial is coming up, so we’ll let you know how it goes.
That being said, the Network member should make sure that they articulate the factors that went into their perception that they were a victim and needed to threaten force to defend themselves. Never do anything that could be perceived as threatening when the police are there (don’t be holding your gun, unless you have to for your continued protection). Be civil. Don’t use foul language. Keep calm. If you act reasonably, it is much easier for the investigators to believe that you acted reasonably.
If you ever feel that the police have picked you as the loser, ask for your attorney and exercise your right to remain silent.
Marc S. Russo
Attorney at Law
25 Plaza St. W. #1-K, Brooklyn, NY 11217
In this situation, the perp is still alive and able to give his version–which he must to get the police to take action. If there are no witnesses in the good guy’s favor–and especially if there are for the perp, and/or the perp is unarmed when the police get there–I would advise the good guy to remain silent until he has consulted with an attorney, even though this may result in his arrest.
In some states, even those with lenient gun laws and reasonable self-defense concepts, “brandishing” a weapon as a threat is unlawful without some immediate physical danger. Better talk to a lawyer familiar with local law. If the good guy has witnesses or other evidence in his favor he may want to be a bit more candid about the incident itself, but not anything further without legal consultation.
Arthur R. Medley
Attorney At Law
P.O. Box 5544, Dothan, AL 36302
As in any case, the driving issue is controlling the context. If a Network member has threatened the use of force in self defense then what we’re really saying is that there was an attempted assault upon a Network member that was thwarted by the member when he/she defended himself or exhibited the ability to defend himself. This applies, of course, to attempted assaults/robberies/burglaries, etc.
Any calls to 911 should be by the member simply pointing out that there was an attempted crime committed against him/her. The gun should be holstered at this point and there’s no point in bringing it up. Let the perp explain why he was incapable of completing his attempted assault. Then the member may respond that, “Yes, I was able to defend myself and avoid serious injury by displaying my weapon for which I am properly licensed.” Perps need to be kept on the defense.
Mark Seiden, PA
3948 3rd St. S., Ste. 387, Jacksonville Beach, FL 32250-5847
Responding to a threat must be proportional to the threat itself. In other words, it is inappropriate to respond to the threat of a punch in the nose or a non-violent property crime by displaying or drawing a firearm. It is advisable to de-escalate a situation in which you are threatened by physical force alone if at all possible, or to withdraw from the confrontation if withdrawal can be accomplished safely. I recommend that you follow this advice even in “stand your ground” states. Remember that the encounter will more likely than not be caught on video.
That said, if the situation requires that a firearm be displayed or drawn (though the weapon is not actually fired), the same guidelines one would follow in a shooting situation still apply.
Do call the police.
- Identify yourself as the victim and a CCW permit holder to the 911 operator.
- Do not allow yourself to be interrogated by the 911 operator.
- Clearly inform responding officers that you are the victim, not the offender.
- Do not have the weapon in your hand and do not let it to be visible to responding officers when they arrive.
- Expect that they will have their weapons drawn and pointed at you when they arrive.
- Cooperate in giving a description of your assailant.
- Make certain that they understand you are the victim and you were in fear of death or great bodily harm.
- Safely surrender your weapon to officers when told to do so, following every instruction they give you.
- Expect to be treated as an armed felon and thoroughly searched until they have the situation sorted out.
- Do not expect to be treated gently or courteously by officers, as they are responding to a man with a gun call and don’t know you from Adam. You may be handcuffed. If so, do not resist.
- Do call your lawyer immediately AFTER (not before) you call 911.
- Explain to responding officers that you have telephoned your lawyer and he/she is on the way.
Postpone giving any detailed statement until your lawyer arrives and you have had the opportunity to confer with them. Be absolutely truthful with your lawyer and follow their advice. If you do give a statement, DO NOT LIE TO THE POLICE! If your lawyer advises you not to give a statement, follow their advice.
Finally, never display your weapon or threaten anybody with it unless the situation leaves you no alternative. There can be no hard and fast rules as to when to display or draw the weapon, as factual scenarios vary greatly. An 80-year old in poor health may have greater reason to react to a confrontation by displaying or drawing a weapon in response to a threat of physical force than would a fit 30-year old man.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. So many great commentaries were submitted that we will continue this discussion in the February 2016 edition of this online journal.Please return next month for more answers to this important question.
Click here to return to January 2016 Journal to read more.