In a natural disaster, periods of civil unrest or locales with poor phone service, a person who uses deadly force in self defense may be unable to call police quickly or may find emergency services overwhelmed and unable to take their call. This concerns Network members who ask what they should do. We asked our Affiliated Attorneys what steps members might take to best protect themselves after use of force in such a situation. Our questions and the attorneys' responses follow–
In your state, if unable to contact 9-1-1 immediately after self defense, what steps should a Network member take to avoid legal jeopardy?
If unable to summon police after using force in self defense, what concerns attach to the armed citizen leaving the scene to retreat to a safer place?
Emanuel Kapelsohn, Esq.
Lesavoy Butz & Seitz LLC
1620 Pond Road, Suite 200, Allentown, PA 18104-2255
610-530-2700
https://lesavoybutz.com/attorney-profiles/emanuel-kapelsohn/
Interesting question. While perhaps unlikely, all things are possible.
By all means get to a place of safety for yourself and your loved ones. Do not feel obliged to remain in jeopardy so you won’t later be seen as having “left the scene.” It’s more important to be alive to later be seen!
Phone calls, emails and texts use different platforms, so emails and texts may get through when phone calls do not. Many people found this to be true after 9/11. Of course, you need a cell phone number to which you can text. If poor phone service plagues your area, or if power outages and natural disasters are common, think about getting necessary cell numbers in advance. If you can’t reach the police, consider reporting the event to firefighters or EMTs. As a last resort, report the event to ANYONE you can reach, letting them know you’ve tried to reach the police but failed, and asking them to report the incident to the authorities at their earliest opportunity. Don’t provide any unnecessary detail – just the basics of what occurred, where, and when. At least that documents your efforts to contact the police, and your intention to report the incident, rather than to conceal it.
In the Magliato case, in which I testified as an expert in NYC in the mid-1980s, after an accidental discharge of his legally-carried revolver struck and killed his attacker, Magliato fled the scene when a possibly hostile crowd of the attacker’s friends began to gather. Because Magliato could not immediately reach his attorney (this was before the day of cell phones), it was a day or two before he turned himself in to the police with his attorney present. Magliato was charged, tried, and convicted of second degree murder. I believe if he had left the scene – as he had to do for his safety and that of his passenger – but had then promptly called the police, he might never have been charged, or would have been charged with a lesser offense. A good lesson from which to learn.
Jason S. Downs
Murphy & Downs Law Offices, P.A.
3682 N. Wickham Road, Suite A, Melbourne, FL 32935
321-985-0025
https://murphydowns.com/
I would first recommend contacting their attorney. If it’s truly a natural disaster-type of emergency, there should be a voicemail. Leave two voicemails. The first one should say something like, “For the purposes of this voicemail, I waive attorney-client confidentiality. I have been involved in a shooting situation and I have tried to call 911 but cannot get through. The time and date is...” That way there’s a credible record (via memorialization) that they have tried to contact 911. Do not waive confidentiality in the second voicemail and leave your attorney a message to call you back immediately.
Next, I would take a selfie video. The video should begin with “for the purposes of this video, this video falls within attorney-client privileged work product.” Then give a detailed account of exactly what happened and turn this video over to your attorney as soon as you can.
Then do not speak to anyone else until you’ve spoken to your attorney.
Also, remember: if the assailant is possibly salvageable and is disarmed, I would recommend doing something to attempt to preserve their life – CPR, pressure on wounds, etc. If the situation is not safe, note in your video that you could not offer life-saving measures because [insert reason].
Retreat to a safe NEARBY place. Do NOT go home unless directed to by your attorney or police.
John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04101
207-780-6500
In your state, if unable to contact 9-1-1 immediately after self defense, what steps should a Network member take to avoid legal jeopardy?
Most cellphones have a “voice record” as well as a video function. We tell people to start voice record ASAP if they can’t get cell service – before you have to threaten or shoot if possible. Yelling for help is a good idea. It is inconsistent with the idea of flight. If there is any chance it will be heard by non-perpetrators, it is worthwhile. George Zimmerman hollered for help, and it made a difference. https://abcnews.go.com/US/george-zimmerman-beaten-prosecution-witnesses/story?id=19517236
You can, if you must leave and if there’s anything useful to preserve (like a weapon on the ground or in deceased fingers), take a photo of the scene. This can be really, really important if you must leave the scene. If you CAN reach someone, but not the police, call an ambulance. Describe the person as a perpetrator shot in self defense. Don’t say you did it. There will be time for that after you have called counsel.
If unable to summon police after using force in self defense, what concerns attach to the armed citizen leaving the scene to retreat to a safer place?
There is the chance that evidence will “disappear” or be moved. However, if you stay and the perpetrator was not alone, you are still in jeopardy. You want to contact someone ASAP, because the first reporter is usually the presumptive victim.
Things get more complicated if the subject is not obviously dead. Some effort to render aid is useful, even if it is “try and tie that scarf around the wound.”
The first person you see should be told: “I was just attacked. There’s a guy who needs help at (location).”
Note that, ideally, what follows will be said by you after conferring with counsel.
You will state as to ANY efforts to summon aid – “I’ve learned it is better if they survive to be prosecuted. I will be cleared if they survive to be convicted. That’s why I tried to assist.” That’s actually true. I’ve had a couple cases in which the shooter got summary judgment because of conviction of the attacker. Here’s one: https://law.justia.com/cases/federal/appellate-courts/ca1/06-2644/06-2644-01a-2011-02-25.html
I represented Officer Conley that night.
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza Ste 201, Valley Stream, NY 11580
212-482-8830
https://www.thegunlawyer.net/
As for contacting the Police generally, one should do that as soon as it can be done in safety.
As for retreat to a safer location, New York is a “retreat with safety” jurisdiction – a middle jurisdiction between states that require retreat at any cost, and the states that do not require any retreat (“stand your ground”). This means that in New York, you cannot use deadly force if a safe retreat is available.
Thus, if after using deadly force, you still are facing a deadly threat, but can retreat safely at that point, then you must retreat. As for contacting police, obviously you will not be expected to do that while you are facing the threat and trying to escape. You would, again, contact police as soon as you could do so safely.
Craig R. Johnson
Anderson, Fife, Marshall & Johnson, LC
2500 N. University Ave., Provo, UT 84604
801-458-2285
CraigJohnsonLaw.com
https://craigjohnsonlaw.com/
In your state, if unable to contact 9-1-1 immediately after self defense, what steps should a Network member take to avoid legal jeopardy?
Do not speak to anyone about the details of the event. If asked, say your attorney told you to only speak with them.
If unable to summon police after using force in self defense, what concerns attach to the armed citizen leaving the scene to retreat to a safer place?
As long as they can document the efforts made to summon police, they should be fine.
Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P.O. Box 70, Borden, IN 47106
812-810-1234
http://www.ooleylaw.com/
In Indiana, if unable to contact 9-1-1 immediately after using deadly force in self defense, a Network member should consider the following steps to avoid legal jeopardy:
- Ensure personal safety first. If the scene is unsafe, retreat to a secure location.
- Attempt to contact law enforcement as soon as reasonably possible, even if emergency services are overwhelmed. Document attempts to call.
- Preserve evidence at the scene if safe to do so. Take photos or video if possible. However, do not tamper with evidence or alter the scene.
- Identify any witnesses and obtain their contact information.
- Seek medical attention for any injuries, even minor ones.
- Contact legal counsel as soon as possible for guidance.
- Document everything about the incident in writing as soon as you are able.
Regarding concerns about leaving the scene if unable to summon police:
Indiana’s self-defense laws do not impose a duty to remain at the scene after using force in self-defense. However, leaving could be viewed suspiciously by law enforcement and prosecutors. If it is necessary to leave for safety reasons:
- Attempt to contact law enforcement from a safe location as soon as possible to report the incident.
- Document the reasons for leaving the scene.
- Return to the scene when safe to do so, ideally with legal counsel present.
- Be prepared to explain the circumstances that necessitated leaving.
- Cooperate with the investigation once able to safely do so with the assistance of counsel.
The key is to demonstrate that leaving was necessary for personal safety, not an attempt to flee or avoid responsibility. Contacting law enforcement at the earliest safe opportunity is crucial to establishing the legitimacy of one’s actions.
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Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we will explore a new question.