Attorney Question of the Month
One of the most hotly debated issues in the armed citizen’s world is how to interact with the police after a shooting. Some people say you should immediately invoke your right to counsel and say nothing until you have your attorney at your side. Others say that if you do not explain to the police what occurred, you will be immediately suspected of murder and arrested. Preceding the police arriving and wanting to question you, however, comes the 9-1-1 call. For the next several months, we will explore these issues through our Network Affiliated Attorney Question of the Month. We will start with the 9-1-1 call.
We asked our Network Affiliated Attorneys:
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?
James B. Fleming
Fleming Law Offices, P.A.
PO Box 1569, Monticello, MN 55362
This question assumes that the armed citizen is going to be in any kind of shape to personally call 911, which I strongly believe to be a dangerous assumption. In many cases the armed citizen may not be in any kind of physical or mental condition to make that call effectively. Whoever calls 911 should limit the interaction to the following:
Who you are. Where you are. Why you need emergency responders.
“My name is Dorothy Smith, I live at 1818 Erving Lane in Hoboken, N.J. There has been an incident at my home where my husband was forced to shoot an intruder in self-defense. People are injured. Please send officers and medical assistance to this address immediately.”
The 911 dispatcher will attempt to keep the caller engaged and will continue to ask questions. I do not recommend any further interaction with the dispatcher, nor are you obligated to follow her directions, or answer any additional questions.
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza, Valley Stream, NY 11580
Assuming that the armed citizen has shot the perp; that there is an injured or dead perp on the ground; and that the citizen will not try to deny that he/she shot the perp, then definitely call 911. To fail to do so, under the claims that the citizen had no obligation to do so and did not want to self-incriminate, will make him appear calculating and heartless. We want him to appear compassionate and moral.
As for what to say, this is the most difficult thing, because under the intense emotional pressure of the moment it will be almost impossible for the citizen to control his actions. But control himself he must. He should tell 911 his name, his location, repeat the location, that there is a seriously injured person who is bleeding, and to send an ambulance and police right away, repeat send an ambulance and police. THEN THEY SHOULD HANG UP.
It is very important not to stay on the line and keep talking. 911 often will try to keep a caller on the line until police arrive, and the entire conversation will be recorded. (The citizen’s lawyer can give good reasons later for why his client could not stay on the line.) And the citizen should not answer the phone when it rings thereafter. It will be 911 calling back, or the police.
James E. Leuenberger
James E. Leuenberger P.C.
4500 SW Kruse Way, Ste. 100, PO Box 1684, Lake Oswego, OR 97035
Heck no. Call defense counsel. Defense counsel should call police from the scene.
Thomas C. Watts III
500 N State College Suite 1100, Orange CA 92686
980 Montecito Suite 101, Corona CA 92879
This is a great issue to raise. The lawyer’s gospel on this issue is to say nothing at all. There is wisdom to this approach. There will likely be a civil lawsuit following any self-defense event. The burden of proof is much more relaxed. What is said in a well-intentioned attempt to aid enforcement and their investigation, may come back to haunt in a civil proceeding.
Then, of course, there is that pesky issue of a criminal complaint where you are likely to spend a day or two in jail, then a year or two fighting your way out the criminal justice system at your own expense.
Yet, there is the idea that carefully limited communication is appropriate. The thought is to take some ownership of what has occurred.
Yes...call 911 or make sure somebody else calls. The investigation should start while the evidence is fresh. More importantly, the investigator should start with the premise of self defense in mind, rather than the premise of what type of crime may have occurred.
We know that the Primacy Bias tends to start people thinking along the lines of the first set of understandable and credible facts that are presented. Once established, Confirmation Bias tends to result in the adoption of consistent facts and the rejection of facts that do not fit within the preferred hypothesis.
For example, we are told that a group of college kids together on a Friday night, are planning to go a mountain cabin the next morning. We further learn that they are playing music, without any supervising adults and all together in a single room, eating and drinking. It will be pretty hard to be convinced that they are holding a Bible study. On the other hand, if we are first told that these kids were together studying a Bible, playing music, without any supervising adults are all together in a single room, eating and drinking, it will be difficult to accept that the Bible they are reading is a demonic cult manual.
This guides us on what might be stated in a 911 call regarding a lawful shooting in self defense. The facts pertaining to self defense ought to be pressed at the first possible opportunity.
In my state of California, there are jury instructions that tell the jury what facts must be shown in order to prove the existence or non-existence of a proposition. Let’s take a look at Judicial Council Of California Criminal Jury Instruction 505 as of May 2015 (Westlaw). Parts have been edited or deleted for clarity.
The defendant is not guilty of (murder/manslaughter/attempted murder/attempted voluntary manslaughter) if (he/she) was justified in (killing/attempting to kill) someone in (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if:
1. The defendant reasonably believed that (he/she/ [or] someone else) was in imminent danger of being killed or suffering great bodily injury or was in imminent danger of being (raped/maimed/robbed/ other forcible and atrocious crime);
2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;
3. The defendant used no more force than was reasonably necessary to defend against that danger.
(The balance of the instruction appears at the end of this discussion for the reader’s better understanding.)
There will be plenty of evidence of a homicide or bodily injury at the scene. My thought is that the 911 call is the first instance where a citizen, lawfully exercising their right of self defense has the opportunity to shape the course of the investigation by stating to effect that there has been a shooting that occurred when the perpetrator put the citizen or others in the immediate danger of being killed and would not back down or flee or otherwise retreat from the scene. Further, if the threat has not been fully neutralized, the citizen might describe the scene to the operator, whether the citizen is still armed. If appropriate the citizen should state that they are at the ready to cooperate and comply with enforcement once they have arrived to secure the scene.
An envisioned call to 911 might sound something like:
“I need to report a shooting. I was forced to shoot an intruder who was going to stab my daughter with a knife. His arm was in the air with the knife in his hand. I didn’t have time to get him to stop. He was going to kill her. He is not moving. I believe he is dead. I am not certain he was alone, but there does not seem to be any other threat. We have not been physically injured. Please send help. The front door is opened; I am sitting in the kitchen with my daughter. My weapon has been made safe. I will comply with any instructions of responders when they arrive on the scene.”
In this call, the citizen is stating observations and relaying information rather than trying to explain or justify.
The operator would ask for identification and location information, but not much else. If the decision is made not to speak to enforcement (a different discussion, but with many of the same considerations), the citizen is on record from the outset with facts supporting a complete defense to criminal and civil liability.
This discussion is intended as a general comment on an important issue with many different viewpoints. It is not intended as specific legal advice to be universally applied to every situation.
The rest of the jury instructions I cited earlier continues:
CALCRIM 505 (continued)
Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to (himself/herself/ [or] someone else).
Defendant's belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation.
If the defendant used more force than was reasonable, the [attempted] killing was not justified.
When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
The defendant's belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.
[If you find that the decedent threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
If you find that the defendant knew that the decedent had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.]
[Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.]
[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with <insert name of decedent/victim>, you may consider that threat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).]
[A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury/<insert forcible and atrocious crime>) has passed. This is so even if safety could have been achieved by retreating.]
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter).
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 October 2015 Journal to read more.