An Interview with Kevin Davis
by Gila Hayes
Private armed citizens using a gun in self defense and lacking a law enforcement badge to identify themselves as “card-carrying good guys” have the additional concern of being mistaken for the assailant. After containing the first danger–surviving the deadly threat that caused them to draw the gun initially–armed citizens must worry about a second danger: being mistaken by responding law enforcement as the criminal who committed the assault.
Kevin R. Davis (shown teaching in photo, right), a career police trainer, patrol officer, SWAT team member, expert witness on police use of force and author, recently answered questions about police/armed citizen interactions raised by a chapter he wrote in his April 2015 book, Citizens’ Guide to Armed Defense, published by Gun Digest Books. That was Davis’ second book, following the 2012 publication Use of Force Investigations: A Manual for Law Enforcement. The first book, Davis explains, grew out of his work “as an expert witness defending police officers in shootings and other use of force incidents. It was based on too many law enforcement officers being charged with crimes in perfectly good uses of force, sadly.”
We wondered how those concerns affect armed citizens’ use of force in self defense. Let’s switch now to our Q & A format as we discuss these and related topics with Kevin Davis.
eJournal: Are there parallel lessons between your two books–one for law enforcement, one for private armed citizens?
Davis: As I mention in my current book, the people that are going to be doing the investigation on the private citizen’s use of force are the same people who are going to do a law enforcement officer’s use of force investigation.
That is unfortunate, because what I have found out in my work is that generally speaking except for large departments–like LAPD that has specialty units that investigate officer involved shootings–most agencies don’t have trained personnel. Sadly, most law enforcement chiefs and chief executives don’t have that background in police use of force. I was once at a class where we were asked a hypothetical situation about when you could shoot a fleeing felon. My partner and I were the only two people in the class that knew the answer. The vast majority of the 50-or-so people in the class were chiefs and higher-ups from different agencies.
If police don’t know the law enforcement investigations, it really is going to be troubling when they investigate a private citizen’s use of force. The system is the same. The only difference is that the law enforcement officer is charged with apprehending someone and the private citizen is not. It is so sad, because the most important thing for police chiefs and police investigators and officers to know is use of force. And they don’t.
The corollary for the private citizen? It is one thing to have a firearm; it is quite another to know when and when not to use it and also to know what will happen post-incident in terms of the investigation. Even in law enforcement today, static training–standing on a line, you know, “ready on the right, ready on the left, firing line is ready, when the whistle blows draw and fire two rounds”– still permeates law enforcement and to a large extent, that is all the private citizen ever gets, so they are really not prepared for the quite different situation of an armed encounter.
eJournal: Exactly, yet confidence and decisiveness in a violent encounter is so very dependent on skill and mental preparation. I think also some of the necessary resolve derives from knowing what to expect and concluding that the aftermath is preferable to being killed or crippled. Surviving after the criminal’s attack is what we want to talk about today. While the lawyers can take over aftermath management fairly soon, there is inevitably a period of time right after the use of force when the citizen is on his or her own and has to interact with law enforcement responding to the incident scene. That is the element I would like to talk with you about.
Davis: I’ve seen some terrible things done after law enforcement shootings: cops disarmed, treated like suspects and locked in rooms waiting for someone to interview them. We used to take guns away from officers even out on the scene and despite how many hours they’d been up, we’d insist they give an interview before they went home.
Now we don’t. How we learned to treat law enforcement officers post-shooting should extend to the citizen that has been involved in a traumatic incident and had to fire in defense of their life or that of a loved one.
In the county where I used to live and work, they abdicated the leadership on investigations to a head criminal deputy prosecutor. She would come in to interviews and say things like, “Come on, let’s get this going; I’ve got a picnic to go to.”
That criminal prosecutor did not even know the law. She made the statement that she never gave someone their Miranda rights unless she thought there was a problem with the shooting.
Today, cops don’t know Miranda, either. They watch television so they are out there on the scene handcuffing the suspect and automatically say, “You are under arrest; you have the right to remain silent.” Any investigator will tell you, “Don’t do that!” You don’t want to do that because you screw up the opportunity to get spontaneous utterances and a lot else. There is a whole psychology of interview and interrogation. Our guys will a lot of times interview a potential suspect, tell them, “You are free to go,” and as soon as they leave, based on what they told them, they go and sign the warrants for their arrest.
eJournal: A huge blind spot for armed citizens, knowing in our hearts that we are the good guys, is failing to anticipate tactics used to induce inculpatory statements that do not accurately represent the situation we just survived. But I think the misrepresentation starts even earlier. When the patrol officer receives the “man with a gun” call from a bystander who saw only a fraction of the defensive gun use, the presumption is that a criminal with a gun has committed a crime.
Davis: My background on issues of the effects of stress in shootings started back in the day with a good friend of mine, Bruce Siddle of PPCT. Bruce told me he trained with Rex Applegate, who based his training on his knowledge of two different types of shootings–the first, the spontaneous, the second, non-spontaneous.
With the spontaneous, there is very little time to get ready. Boom! There’s the deadly threat and we get that instant secretion of hormone in the brain and the cascading effect through the body and so many different things happen.
You certainly don’t rise to the occasion; you default to your training. I can’t tell you how many times in debriefings law officers said, “I did what I trained to do,” or they told me, “Training saved my life.” That is why training is so important and why we need to replicate as much as possible those conditions of fight or flight in our training so we get that inoculation effect.
eJournal: I believe we must extend training to role play of interacting with responding officers, too, because as you said, the adrenaline and other stress hormones don’t just flush out a few minutes after the shooting.
Davis: When we’re under these stress chemicals and the effects of the sympathetic nervous system (SNS) reaction, we tend to have diarrhea of the mouth. The mistake could be, after a shooting, something so innocent as saying, “It was an accident; I didn’t mean to,” when the citizen means, “I didn’t want to do it; he made me do it.” But there are such legal ramifications if a citizen says, “It was an accident” vs. “It was an intentional act of self defense.”
People shoot their mouths off and say, “The gun went off by accident.” It is so dangerous. I can’t tell you how many times at the range, when there is an unintentional discharge, the person says, “It just went off.” [chuckling] Of course it didn’t just go off–that can’t happen! But people tend to say that. In these spontaneous incidents, we are more likely to see adverse effects that impact the way we think, our ability to perform motor skills and our memory in a variety of different ways.
In my first book, I talk about quite an interesting study about interrogations that the army did. Military personnel in basic training were in a room with an interrogator for about half an hour. It was stressful but nothing like water boarding. They were later asked to identify their interrogator. The majority could not do it. Even though they were in the room one-on-one for about half an hour with this person, they could not properly identify them.
There are so many ramifications of stress and that is why eyewitness testimony is so bad and why we have gaps in memory after stress. We know that waiting for those stress chemicals to wear off for a couple of sleep cycles is where you are going to remember a better chain of events.
For officers, the big trend now is to do what we call walk-throughs where the officer walks the investigators through what happened at the scene, though not physically. I don’t know if that would be allowed to the private citizen because so much depends on the investigator–whether they are sophisticated enough to know to do that.
eJournal: While much of what happened in the George Zimmerman prosecution was anomalous, I think it is an example, actually, of a citizen giving a walk through to investigating officers.
Davis: When you are in that situation, you better have an attorney present! Keep your mouth shut until you get an attorney there. Members have to understand that everything they say and do now days may be captured on video. You have to operate under that assumption, whether it is on-scene cameras, transport in the patrol vehicle or in the holding room, everything will be video taped.
eJournal: May we back up a couple of steps? Imagine a Network member has stopped an assault and is, perhaps, holding a violent assailant at gunpoint. As a law enforcement officer, how do you approach if all you are told is that there is a man with a gun at the location to which you are being dispatched?
Davis: The sympathetic nervous system reaction the citizen is experiencing is also being experienced to a greater or lesser extent by the law enforcement officer. This is where it is nice to work in a busy car on a busy shift in a busy city where officers are able to process these things because they roll on a lot of different shootings. My city has shootings on a regular basis so our officers can control their SNS a little more than say a suburban officer who is not regularly in those situations.
To control the sympathetic nervous system reaction, the citizen needs to start breathing: if it is not spontaneous and you have some pre-assault indicators, start your autogenic breathing to control your stress. Breathe, start expanding your vision and looking around. The SNS sucks you in to the tunnel vision, auditory exclusion, perceptual distortion and you’re not thinking of yourself as a suspect. Just like officers in blue-on-blue shootings: off duty officers are shot every year in this country because they are not thinking of themselves as a suspect so when they are hailed or challenged by officers who are also under SNS response, they turn or pivot with a gun in hand and you have a tragic set of circumstances.
Both parties–the officers who are rushing to the scene and the citizen–are experiencing perceptual distortion and the citizen can help control that as much as possible by starting to breathe. That is what we teach officers: breathe, expand your scope of vision so you’re not getting sucked in. Then you can think better, move better, and talk better.
If the call comes in to dispatch and a private citizen says they shot somebody or is holding somebody at gunpoint, invariably, to protect their officers, the dispatcher will say, “Put the gun down.” But dispatch is not thinking about the exposure and risk that presents to the citizen.
eJournal: What can you do?
Davis: If you can, reholster. Certainly, lower the gun to appear less threatening. Then prepare for an officer to arrive, whether that is to seek cover or as Massad Ayoob teaches, get someone to go out and meet the cops to tell them you are the good guy. Ultimately, it falls to the citizen to understand that the responding officer is experiencing the same perceptual distortion that they are. That is why I think the “Don’t Shoot Me” banners are good in concept.
The rule for off duty cops–and the same applies to citizens–is that the responding officers trump everything. In other words, if they order you to drop the gun, drop it. They’ll say, get down on the ground, usually it will be face down, arms extended, legs spread, heels on the deck, and they are going to handcuff that citizen/suspect. Until they have stabilized the scene and have figured out what is going on they are going to treat everyone in that environment as a potential threat.
eJournal: Going back to your advice about expanding the field of vision through autogenic breathing, not only does it prevent being surprised and spinning around to face responding officers, in densely populated areas we may not be the only legally armed citizens present and another armed citizen may mistake us for a violent criminal. Of course, we also need to look around for accomplices of the person who attacked. We can’t afford to just stare at the bad guy. What concerns do we have about non-police response?
Davis: That goes back to training. Our members need to be sure they have received training in the sympathetic nervous system response. While the good guys can’t control what happens to another person on the scene, one of the nice things about moving to a position of cover is that once again, it may provide cover from good guys and bad guys, rather than standing out in the open with your back exposed.
Armed citizens need to know it may be an off duty or plainclothes officer who is involved in some type of enforcement operation, or maybe it is another armed citizen. Everyone is experiencing auditory exclusion. It takes work to understand how the SNS response works and how it affects everyone. You are absolutely right, there is a danger.
eJournal: There was a survey in which Force Science Institute researchers asked police officers about their experiences from both sides of situations when uniformed officers encountered off duty or plainclothes officers during use of force incidents.
The prominent strategy survey respondents said they had employed or planned to use was verbal identification. After all you’ve said about auditory exclusion, have you any thoughts on verbal communication with responding officers?
Davis: To break the tunnel hearing or vision, start thinking there is a very real possibility I may be shot by responding officers if I don’t handle this well. Once the assailant is down, articulate to everybody that you’re a lawful citizen, the victim of an attack, maybe that you’re a concealed carry permit holder. Ask, “Please call the police, tell them what I am wearing.” Similar things are done with off duty officers, as well, to diminish that possibility of blue-on-blue shootings as much as possible.
But understand that the way dispatch works now days, the call but not the suspect description is dispatched. Most of the description goes out on the computer/mobile data terminal. If you’re rolling on a hot call, say a shooting in progress, especially if you are working alone, you may not have time to read the call notes as you are driving, red lights and siren, to the location. It is entirely possible that the specifics of who’s who are not going to be related to the patrol officer prior to rolling up on the scene.
eJournal: If it falls to us to try to give a verbal identification, what should we say or not say to responding officers in those tense first few moments?
Davis: That’s a tough one. Try to articulate as much as possible that you are the victim, that you are the concealed carry permit holder, that you are an armed, law-abiding citizen. The problem is, when everybody starts yelling back and forth, nobody hears anything. It is a danger for cops, too. Frequently, you will have one criminal suspect and you have five officers yelling at him to do five different things. “Get down on the ground, get down on the ground!” “Put your hands up!” “Drop the gun!” People have auditory exclusion so the suspect is not hearing right, the officers aren’t hearing, and it can be a recipe for disaster, even with off duty police officers.
eJournal: Based on what you’re saying, I’m inclined to conclude that what we DO is 99% of the solution and what we SAY is perhaps less than 1%.
Davis: A lot of that is true. Because of the cognitive problems with the sympathetic nervous system, nobody is really thinking with the upper parts of the brain like they should. It is not logical reasoning at that point, the middle brain handles the threat–do I shoot, do I not shoot? That is where cops are at when they are rolling to these scenes.
Not appearing as a threat, not coming across as a defiant suspect, cooperating with them, having your gun in the holster, having it down, or being ready to hit the deck when they say get down on the ground is what is going to make the difference between going home and possibly getting shot.
What you absolutely do NOT want to do is be perceived as any kind of a deadly threat. This officer is sucked in on you and the gun. Even Lewinski’s [Force Science Institute] study talked about positioning of the off-duty badge up high on the chest not down on the belt.
There are a lot of issues here. Probably one reason the Secret Service is purchasing those “Don’t Shoot Me” banners, from what I understand, for all of their agents is because they operate in plainclothes and they don’t want to be improperly identified and be shot.
eJournal: Tell us about the identification banner.
Davis: It is about the same size as a spare magazine carrier, it has a belt clip like some magazine pouches and there is a little loop at the top you can grab with one finger and pull it out and over your head. For off duty officers it will say Police or Sheriff but for permit holders it will say CCW on it. If I’m rolling to a shooting scene, the chances of a criminal suspect having something like that is virtually nil. And that is what is good about it. It is some type of identification that officers can see at a distance when they are making instantaneous decisions to shoot or not to shoot based on their perceptions.
eJournal: You mentioned sending someone to interface with responding police on your behalf. What do you want that “friendly” to do?
Davis: It is SO important for you to develop a plan with your family if you are going to carry concealed, so that they know what you are going to do. For instance, my wife knows that if I get involved, she needs to get small and stay away from me. Of course, the ideal thing would be to be the best witness possible, but if I choose to get involved in something, I’m going to try to pull the attention of the suspect away from her. We’ve talked about getting on the phone to call 911, staying on the phone and giving the proper identification of what her husband is wearing.
It is so much better if the family member has talked about this in advance and you are not trying to wing it right there on the scene. So have a conversation with your family about how to call the police; how to call 911 and what they are going to want to tell them, “This is my husband, he has a concealed carry permit, he is holding somebody at gun point, we are this location, he is wearing this, he has a gun…” The good news is that all this will be digitally recorded on dispatch and will all be available to support the defense of the citizen.
eJournal: Alternatively, if you don’t know anyone on the scene and need to call 911 yourself, as we discussed in an interview with Massad Ayoob about three years ago, we are at risk of getting talked into giving detailed information to dispatch when we ought to be more concerned about managing ourselves and the scene. As someone who has worked with dispatch for years, can you recommend strategies to accommodate keeping communications open with dispatch without babbling a lot of injudicious details into the call recording?
Davis: Stick to the message; know what is needed. First of all, the location and the nature of the call. Those are the two biggest things. Then get into proper identification of yourself, what you are wearing, where you are, and avoid any specifics about what happened.
I remember an amazing tape I heard played years ago, involving an off duty officer in southern California who was fresh out of the academy. Outlaw bikers accosted him and his family while he was off duty. It didn’t have anything to do with his role as law enforcement; he was an armed citizen at that point. As he was relaying this information to dispatch, he said, “Hold on a minute,” he set the phone down, shot somebody–on the phone call you could hear the body drop–then he picked the phone back up and he talked again.
That kind of composure under stress is what we all hope for, but our message is going to be so much better and the information related to dispatch is going to be so much better when we take control of our body and brain and we do that by that autogenic breathing.
Start deep breathing: in for a four count, hold for a four count, out for a four count. Those tactical breathing exercises have been used by martial arts students for years and years and in the modern age in law enforcement and military. I got it originally from Bruce Siddle back in the day. Take a deep breath and start thinking. Think about what you need to say, think about where you are and what information you need to relay to dispatch to make this a successful interaction with police.
eJournal: When you spoke of staying on message, I could not help but think of John Farnam’s teachings about practicing “tape loops” of what you need to say in a stressful situation. His tape loops address deterring a criminal approach, but your answer shows how the concept can apply to managing the aftermath, too.
Davis: I like John! Yes, he does talk about tape loops. It is so important not to just talk about hardware and bullets and shooting. The software issue and mental aspects of it are so vitally important! What are you going to say to somebody? You have got to have those tape loops like John talks about, to have them ready so that you don’t have to wing it. I have enough experience over enough years to call this a rule now: Under stress, your brain and body cannot go somewhere they have not been before. In other words, it is so important in your training to think about these other issues.
eJournal: Even to the extent of doing some training not just for surviving an assault, but to practice walking through what to do afterwards: what am I going to tell dispatch and what is going to be my brief and on-point message to the responding officers? While I agree that we must not run off at the mouth, I think experience and reality dictate that we have got to say something.
Davis: Yes, I know of a case where investigators spent 45 minutes looking for shell casings in a certain area, and the shooting never took place in that area.
I was one of the responding officers on a scene right after a shooting, where the officer fired at a suspect fleeing a B & E, but one of the errant rounds went across the street, pierced the outside of the house, hit a citizen who was asleep on a sofa with a baby on his chest. The shot hit the man in the head and killed him. He would never have been found if it was a citizen shooting and the citizen never said where he was standing and where evidence potentially may be.
You have to be careful what you say, but what about anything that helps in terms of evidence? By not saying anything, police won’t know if the guy is still at large or what was he wearing. Does he still pose a risk to police officers? All those things are worthwhile information that is going to help even in your defense.
eJournal: It is such a fine line! We work so hard at being good citizens–we get our carry licenses, and then are careful to know the law and carry only what is legal in restrictive states like New York–so it is awfully easy for us to be so certain we are the good guys that we fail to realize that standing there with a gun in our hands, we look an awful lot like the last criminal the responding officer had to subdue and arrest. What percentage of “man with a gun” calls in your career have been justifiable use of force incidents undertaken by a law-abiding citizen, compared to calls on which you indeed encountered a criminal who posed a danger to you and the people you protect?
Davis: Virtually zero. The good thing is, that as CCW grows and becomes more prevalent throughout the country, we are seeing some great usages, those things are becoming more prevalent and cops have to think about it more. Cops have to be educated about dealing with the CCW population and how to interact on traffic stops and everything else. But the majority of urban police officers deal with bad guys shooting at bad guys. That is their mindset, that is unfortunate but that is also reality.
eJournal: That is my greatest concern in studying this topic. Humans react out of their prior experiences—and that goes for experienced law enforcement officers, too.
Davis: Yes, they do, and of course perception is everything, in terms of cooperation with police. In my jurisdiction officers involved in shootings give consensual interviews to investigators. They give the Miranda warning because then it is easier to invoke Garrity, which is “No, I am not going to make this statement, but I am ordered to make a statement under threat of internal discipline.” One of the attorneys I work with on a regular basis says, “I know the prosecutors, I have dealt with them for years. The officer didn’t do anything wrong, so it is going to help with the investigation for the officer to give a consensual interview.”
Now days, law enforcement has to look at these consensual interviews differently. Darren Wilson did not do anything wrong in the Michael Brown case. He is not being charged, but he has lost his job and his career and everything else. Look at George Zimmerman: George Zimmerman did not do anything wrong, but look at the ramifications of that.
The citizen’s counsel may agree that he has done nothing wrong, but he is now teetering on the edge because they will examine the tactics and certainly for the citizen, ask did the citizen create the jeopardy that led to the shooting? In law enforcement we are to be judged at the moment that the shots are fired. In the private sector, you are judged on EVERYTHING. Did your mouth get you in trouble? Instead of driving away, did you pull to the side? So many of the cases the attorneys are posting to the Network’s Facebook invoking stand your ground or self defense were mutual combat, but the guy was losing, so he shot the other guy.
eJournal: What can we do by demeanor or appearance to set ourselves radically apart from the 99.9% of gun calls where you find a bad guy has shot another bad guy?
Davis: To coming across as the victim, to be not confrontational, not appear aggressive, but to be compliant in terms of what the cops want, and within that compliance to be insistent: “Listen officer, you know what happens to you guys when you are involved in a shooting. I don’t want to make a statement until my attorney is here. I just want to protect my rights. You understand that. I will be perfectly willing to cooperate with your investigation, but I want to protect my rights as a citizen. You know how flight or fight works, I’m not thinking about this clearly right now, please understand the stresses that I’m going through and dealing with.” Try to get an understanding that you are the victim and this is what you are experiencing and therefore, you want to limit your communication and wait for your legal representation. Say that in a non-confrontational way.
eJournal: That comes across as a plea for assistance as opposed to making excuses or looking deceitful and trying to put the blame on someone or something else, all excuses you might expect from someone who thinks they have done something wrong. Are there other concerns we should discuss?
Davis: Use of force both for the law enforcement officer and the private citizen is becoming a very complex, very political area. As a citizen, whether a citizen soldier, citizen law enforcement officer or a private citizen, you must educate yourself as much as possible and train yourself to the highest degree possible because what we have seen is that training helps control that sympathetic nervous system reaction and the more highly trained you are, the better decisions you are going to make and the higher performance you are going to have. That includes training for dealing with investigators and law enforcement officers speeding to and arriving on the scene. You have to educate yourself.
God bless the people who say with bravado they’d rather be tried by 12 rather than carried by six: it is simplistic. Those people have never been involved in a civil suit or a criminal prosecution to see what the hell they have to go through.
To the private citizen, all I want to say is, look at the Zimmerman case. Prepare yourself for that. Do you have the systems and attorneys in place, and the knowledge base to make the right decisions and prepare for THAT type of scrutiny? It can’t begin and end with an 8 hour or less CCW class. I have devoted my entire life as a trainer to continuing education. It has saved my bacon more than one occasion so I can swear by it.
eJournal: Words to live by. Kevin, how can Network members learn more from you?
Davis: After retiring in a few months and rehab from knee replacement, I plan to expand into more classes offered to private citizens with a renewed emphasis on taking lessons from my law enforcement background and helping private citizens prepare.
eJournal: Be sure to let us know when you have your classes set up. Meanwhile, our members should get Citizens’ Guide to Armed Defense (http://www.gundigeststore.com/citizen-s-guide-to-armed-defense) and Use of Force Investigations: A Manual for Law Enforcement (http://www.amazon.com/Use-Force-Investigations-Manual-Enforcement/dp/1470500124) to learn more.
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