gavelLast month in this column, we asked Network Affiliated Attorneys about protecting your rights after self defense while calling 9-1-1 for law enforcement assistance. The responses were so numerous that we continue this month with more of those answers. The question is–

Assuming the immediate violence is over, the armed citizen and his or her family is safe, should the armed citizen call 9-1-1, and if they do, what should they tell the police dispatcher?

Mark Seiden
Mark Seiden, PA
3948 3rd St. S., Ste. 387, Jacksonville Beach, FL 32250-5847
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My recommendation is that a citizen involved in a shooting tell the 911 operator “I’m the victim of an armed robbery (or some other crime).

I had to use my licensed pistol to defend my life. The robber is down. The address is ------. Please send a police officer and an ambulance immediately. I am wearing a blue blazer and grey slacks. I will stand by until the officer arrives.”

The dispatcher will start a series of questions that likely should not be answered. Simply respond, “I am a robbery victim. Please send an officer and an ambulance to ------ immediately. I will await their arrival.”

Then hang up. All these calls are recorded and you can expect that whatever you say will be played back ad nauseum at any subsequent legal proceedings that may stem from the shooting. Don't allow yourself to be interrogated by the operator over the phone. Holster your weapon so that there is nothing in your hands when the police arrive.

John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04112-0168
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Note that this discussion is NOT about tactics. Some tactical scenarios demand that you be quiet and NOT alert an armed intruder as to your location. It is only about situations where realities permit contact.

OVERVIEW: This area is counter-intuitive. In a true well-prepared scenario, you will ALREADY be on the phone with a 911 dispatcher. Your job then is to NOT get shot by responding officers, and NOT get shot by possible accomplices or a possibly still-combative subject. Hand the scene over to cops, and invoke privilege and right to counsel.

Program 911 and an attorney phone number into your cell phone. Practice verbal commands. If you are afraid of particular people for specific reasons, take legal steps and inform local PD (criminal trespass orders, protection from abuse, cease harassment, injunction).

This is a complex area, because of a couple of principles that conflict with each other:

–He who calls first is the presumptive victim (see Florida v. George Zimmerman);
–Everything you say can and will be used against you unless privileged;
–Cops won’t arrest someone (like the burglar that ran away) without probable cause;
–The longer a scene remains unprocessed, the more likely it is that exculpatory evidence will be lost.

There are two sets of instructions. The first is “pre-shooting” instruction, and the second is post-shooting.

There is also a differential depending on:
–Intruder flees, no shots fired;
–Intruder flees, shots fired–possibly wounded;
–Intruder remains at the scene–dead;
–Intruder remains at the scene–injured or in custody;
and finally,
–Homeowner/defender is injured in the encounter.

–DO contact 911, ask that they record. Give name, names of all persons known to be home, description of your house AND the address and ID of perp, if known. If perp known to be armed, let them know.
–DO get your dog under control and with you;
–DO give the verbal command at top volume:
“Get out of my house NOW. I've called the police.” {Maine specific}
–DON’T discard weapon if a dispatcher tells you to do so, UNLESS you are turning over scene to police already there. Do tell them that you’ll surrender weapons to officer as he directs, when he arrives.
–DON’T discuss your location over land line where there is an extension phone.
–DON’T use “personal” epithets, racial slurs, etc. during your threat/demand.
–DON’T leave behind your phone. Keep firearm in hand or holstered, with finger OFF the trigger, when talking on phone.
In Maine, DON’T try to detain or arrest without more education and training re: same. If the bad guy runs, let him run away.

–If there is no cell service in the area--activate "voice record" on your phone.

[Legally, it is best to not talk. Legally, it looks bad if the FIRST call was to your LAWYER. Factually, it is suboptimal if you or a co-occupant gets shot by responding officers. This entire area is a risk/reward analysis.]

If any person is hurt, ask for an ambulance. Ask if officers are on the way. Ask to be put in touch with the officer himself. Describe all “good guys” as to location, gender, age and dress. Then the same for any “bad guys.” NO MORE INFO!!

If the bad guy wants to talk, do not engage. He MAY have an accomplice who MAY be locating you by voice. Keep the phone on.

If possible, wait for responding officers in a place where you can see him approach and he can see you well. Do NOT have gun in hand. DO have OPEN and VISIBLE hands. DO have gun within reach. Point it out to him when he arrives. Thank him for responding quickly.

Tell him what the bad guy did. IF there are OTHER bad guys believed to be involved, TELL OFFICER what THEY did, and who they are. Then invoke your right to counsel. Tell him that you’ll be happy to give him more information, but you’ll need to speak to your attorney first. “I want to speak with a lawyer before speaking with you further–then you’ll have my assistance.” [Possible exception–the scene is about to be destroyed–arson.]
If he asks to search your home–same deal–wait for my attorney, please. [Exception–you believe ANOTHER bad guy is still in the house, and you aren’t running an illegal casino or something upstairs.]

If you DO give consent, say: “You are welcome to look for PEOPLE, but do NOT search through my drawers, papers, etc. I have confidential material there.” If he pushes, say, “I guess we’ll have to wait for my lawyer.”

If you are shot/badly hurt ALL BETS ARE OFF. Unless you are the perpetrator, your own flesh is a pretty important testimonial to the fact that “serious bodily injury” was justifiably feared–BECAUSE IT HAPPENED.

Have a lawyer or two in mind. They should know criminal procedure and substantive criminal law for your state.

This is a VERY, VERY complex area. It is not something you should attempt to handle under stress ANY MORE THAN YOU HAVE TO.

Kevin E. J. Regan
The Regan Law Firm, L.L.C.
1821 Wyandotte St., Ste. 200, Kansas City, MO 64108
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If an armed citizen has been required to use deadly force in defending one’s home, or family, as posed in your question, I believe it would be prudent for that citizen to call 911.

The comments to the dispatcher should be brief and informative. The caller should try to take a deep breath and get composed before making the call.

The caller should indicate that they were attacked on the street, burglarized or attacked in their home, etc. and required to shoot the intruder to defend themselves, their home or their family, or all of the above.

A description of the assailant should be given, as well as the caller and the caller’s family.

The location of the incident should be given and a request for help made.

I would recommend that long narrative comments be avoided. The caller should understand that everything he/she says will be taped and used against them later, should there be a prosecution or a civil lawsuit filed.

Whether or not prosecution ensues, civil lawsuits quite often follow, no matter how legally justified the citizen was in defending himself/herself, his/her home, family or all of them at that same time.

If a justified armed citizen were to flee the scene or not call for help, it could be used against the citizen as consciousness of guilt, gross indifference to the medical state of the assailant, or in some other harmful legal theory against him/her.

A prudent call to 911 might go something like this: “Hello, my name is Sam Smith. I would like to request an ambulance and medical help for an individual who has been shot at my home. I live at 1010 Main Street, Any City, Any State. I’ll open my back door for ambulance personnel and police to enter when they arrive. The man broke into our house and attacked my wife and children with a knife. I asked him to stop and he came at me with the knife. I had to shoot him to defend my family. He needs medical help. We are all very upset and hope you get here soon. We have a firearm in the house. I’m tall, 50 years old, wearing a blue shirt. I will be waiting by the back door and will follow the directions of the officers and ambulance folks when they get here.”

Monte E. Kuligowski
3640 S. Plaza Trail, Ste. 202, Virginia Beach, VA 23452
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Assuming an intruder is down, calling 911 for an ambulance is advisable. Calling for an ambulance tends to show that (1) the armed citizen’s intention was not to end life, but to protect it. And (2) deadly force was used to stop the imminent threat of death or serious bodily injury, not to end life. The caller should tell the dispatcher that an individual presented an imminent threat of death or serious bodily injury. A response to stop the threat was made. The threat was terminated and the individual is down and needs medical attention. Even if the intruder is unresponsive, he may need medical treatment.

If the intruder is being held at bay, calling 911 for police dispatch is advisable. If the intruder is injured and being held at bay, police and ambulance dispatch is advisable.

Jon Gutmacher
Florida Firearms Law Consulting
1861 S. Patrick Dr., Box 194, Indian Harbour Beach, FL 32937

A failure to call 911 will cause immense problems with the police, the responders, prosecutor, and even a jury.

So, someone needs to call. When you are the caller, know the dispatcher will pump you for information. That is a danger. It is therefore important that the information given is as basic as possible. Plus, there is always the possibility that your actions might be unlawful, or walking a thin line. Therefore, saying the wrong thing could convict you–whereas keeping your mouth shut would have avoided it.

Laws also differ state-to-state. In Florida, the only “safe” use of deadly force is where someone broke into your home or was in that process, or usually when resisting an armed robbery or armed kidnapping. If so, the response should be “a man was breaking into my home, and I was forced to shoot him. Please send an officer immediately.”

If asked if he was armed, your answer should be either “yes” if he was, or “I think so” if you are unsure. Never say “no” or “I don’t know” unless you want to be arrested.

Anything else beyond your name, address, a very brief description of what you look like, if you are still armed, if anyone else was injured, or if the invader is still alive should be: “I'm really too upset now to talk, I want to speak to an attorney. Please send someone quickly!” Rehearse this last part. There will be significant pressure to vary it, and spill your guts out unless you have mentally prepared. Dealing with responding police is another matter your question did not address.
We extend a heartfelt “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for more commentary from our Affiliated Attorneys on this important topic.

Click here to return to November 2015 Journal to read more.