The thoughts we’d like to share this month started as a discussion about the various factors we’ve observed in cases that make the news. The most evocative reports actually contain elements of self defense, but the armed citizen in question has lost the claim that he or she was the innocent party in the incident. Some fundamentals necessary to preserving your right to argue self defense can be accounted almost like a Letterman Top Ten List, but first, let’s outline the underlying and basic requirements for a legitimate claim of self defense.
How to Spoil Your Self-Defense Case
by Art Joslin, J.D., Director of Legal Services
Laws across all jurisdictions generally have three things in common when claiming self defense after using any level of force.
- You can’t be in the commission of a crime;
- You must be in a place you have a legal right to be; and
- You must have an honest and reasonable belief force is necessary to avoid being killed or crippled. Some states have worded these three elements a little differently, but the intent is the same.
So, how do people blow their self-defense case before they even start? Violating one of the above elements will do it for sure.
In the aftermath of a justifiable shooting, there are a number of things that need to be clarified. I understand the advice of not talking to the police if you are so distraught, so emotionally out of control from adrenaline, that you can’t make coherent statements. However, one of my mentors, Massad Ayoob, a number of decades past, developed a five-point checklist of facts police need to be aware of that is widely regarded as sound advice and I teach it to my students, as well.
- Establish the active dynamic. The active dynamic is what the assailant did to you and not what you did to him. The assailant, in a pool of blood, will be looking very much like the victim and you need to establish what he did to you that caused you to use force.
- Advise police you will sign the complaint. Don’t say or do anything that make the police think the roles of victim and assailant have reversed.
- Point out the evidence. You and the first responders just walked on stage and entered a chaotic scene. Evidence can get lost, transferred, destroyed, misplaced, and carried away. Early on, be sure you point out where that evidence has landed. This will bolster your credibility both in the moment and after the fact.
- Point out any witnesses. Before they leave the scene, point out any and all witnesses who not only saw what happened, but those who may have heard what happened, as well. Wouldn’t it help your case if you were able to have police interview a witness who heard you declare multiple times, “I don’t want to fight”? What about the witnesses who saw everything and can attest to you not being the initial aggressor? Wouldn’t that be helpful, too?
- Decline to answer any further questions without counsel. Other than identifying yourself to police, politely decline to answer any further questions until counsel can be retained. Always cooperate with police. Let them know they will have your full cooperation once you have sought legal counsel. You should never decline to identify yourself to police.
Violate the five-point checklist and you might certainly ruin your claim of self defense. A few other ways you can ruin your claim of self defense is to fail to do any of the following:
- Cooperate with police. I’ve experienced far too many people who turned out to be not guilty of the initial crime but received additional charges for fighting with police. If the officer says you’re under arrest and are going to jail, don’t fight or argue with them. Those words mean that you are going to jail no matter what you do or say. Don’t be the one with added charges like resisting arrest or obstructing justice.
- Give police your real name. Yes, it happens all too often. Trying to conceal your identity will always come back to bite you. If you truly believe you are justified in using force, then why would you lie about your identity?
- Never lie to the police! Do I even have to bring this up? You will eventually get caught when witnesses are interviewed, and evidence is presented. Here’s the point: If you lie, the prosecution will use this against you at trial. “You lied then, why should we believe you are telling the truth now?” You’ve lost all credibility with the judge and especially with the jurors. Unless your defense attorney can legitimately show your “lie” was made under duress, this is not a good place to be.
- Never conceal evidence. Concealing evidence will make police immediately believe you are guilty because of your attempt to hide evidence. You can certainly photograph evidence on a cellphone. Evidence such as where shell casings landed, witnesses in the immediate area, etc., could be helpful to your case.
- Do not be the initial aggressor. Starting the fight, even if you must resort to legitimate self defense, can spoil most chances of winning your case. Being the initial aggressor (and some states have added the factor of “provocation”) means you will be looked upon as the assailant. Most states allow you to regain your innocence by announcing in a loud, clear and concise manner that you do not want to fight, you’re leaving the fight, and you are retreating from that place. If the other party chooses to continue the fight after your announcement, then they have become the initial aggressor. This changes the dynamic of the encounter.
- Do not provoke violence. Even if you are not the initial aggressor, do not incite the other party to use force. This is very akin to being the initial aggressor. You may not have started the fight but making the choice to stay in the fray and provoke your opponent can have similar repercussions. If you can safely retreat, why wouldn’t you?
- Do not use force too soon. Many times, lawful firearm carriers get into trouble because they go to the gun much too soon. Remember, deadly force can only be used against the threat of deadly force being used against you. That threat must be honest and reasonable. You cannot simply state you were in fear for your life without being able to articulate what that threat was.
- Do not use force after the threat has passed. Deadly force can only be used against the threat of deadly force being used against you immediately and unavoidably. We’ve all read about situations where a person exited the immediate vicinity of the fight, went away and got a gun, then returned and got into a shooting. Likewise, if the aggressor withdraws and no longer poses a deadly threat, you may not use force to drive home your point no matter how frightened or upset you may be.
- Don’t discuss your case with anyone but your attorney. The urge to speak to family, friends, and others about what happened will be overwhelming. Do not make any statements to the media. Let your attorney do that if he or she chooses. Even telling your closest friends what happened, simply to “get it off your chest,” can prove disastrous. Remember, there is no lawful confidentiality accorded to statements you made to your best friend, unless they happen to be your licensed counselor or clergy. If you want to talk and get things out, do it with a professional.
- No bravado. The prosecution will be looking for photos and statements on social media to attempt to use against you. That t-shirt you wore on a fishing trip that reads, “Kill ‘em all, let God sort ‘em out” will not benefit your case when you’re at trial (or any other time). Remember, the government wants to portray you as a wild west, hair-trigger maniac who wants to go out and shoot up the town. Don’t supply evidence that they might use against you.
All of the points above are not meant nor intended to be legal advice. However, each point is practical advice I would include in any firearm training class. I highly recommend getting the advice of competent legal counsel in your jurisdiction on these enumerated points as soon as you can. Remember, in the aftermath of a defensive encounter, you will have so much more to think and worry about. In a justifiable shooting, don’t be the one who accidentally or even purposely gives the other side ammunition to prosecute you with. Be safe and be well.
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Art Joslin, J.D, D.M.A. is the Network’s new Director of Legal Services. Contact him with your questions and comments at
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