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Armed Citizens' Interactions with Law Enforcement
by Gila Hayes
Armed citizens often express a nearly morbid dread of contact with police, fueled no doubt by fear of being arrested while exercising their lawful right to carry defensive weaponry or horrified anticipation that they will be hauled off to jail after defending themselves or their families.
Fear, abhorrence or resentful subservience toward the police are counterproductive to the citizen, ruining much chance for cooperation toward a reasonable outcome should circumstances bring them together. On the other hand, educating our members about interaction with police certainly can improve contacts they may have with law enforcement.
That is the goal of this article. Drawing on interviews with retired law enforcement officers, this article offers insights into how police make decisions when responding to a call about a citizen with a gun. I chose to interview retired officers for several reasons. First, situations in which legally armed citizens act in self defense are so rare that, drawing on their entire careers, most of the interview respondents could only cite perhaps a half dozen such calls. The retiree’s career-long experience provides better depth. No longer being attached to an agency alleviates defensiveness about doing an unpopular job and certainly removes pressure to represent the employing department favorably.
Police practices have strong regional overtones. Four retired officers from various regions of the country contributed to this study. In addition to addressing west coast practices Roy Huntington is the publisher of American Cop magazine. Readers of the NRA’s Shooting Illustrated and the online Tactical Wire are familiar with Rich Grassi’s byline; his comments in this study are representative of the mid-western states. After a 35-year career in policing and corrections, Herb Furhman now teaches firearms classes, and here he speaks to his experiences working in Connecticut. Police procedures expert Edward Mamet served a distinguished almost-forty-year career in New York City, including 20 years in NYPD’s detective bureau, and he speaks about policing in large, metropolitan areas. All four answered questions candidly, and it is my hope that their information will give armed citizens better strategies for interacting with police.
RESPONDING TO THE UNKNOWN SITUATION
Armed citizens bristle when told that they may be treated like a violent criminal after defending themselves. They forget that law enforcement enters the scene with only limited knowledge. Queried about how law enforcement approaches a call about an armed citizen, all of the respondents explained that safety of the responding officers must be foremost.
The manner in which an officer approaches a scene “is really situationally-dependent,” Roy Huntington explains. Dispatcher skill and style varies, he notes, and the information given by the complainant is incomplete and sometimes unreliable. For example, a neighbor may report hearing gunfire coming from an address, a caller may say he has been threatened or harmed, or a homeowner may call and state that they’ve shot a burglar.
Huntington remembers responding to four or five shootings by homeowners during his 25-year career. “Every single one of them was different,” he recalls. “I’d say, ‘Let’s have the victim come outside.’ I want to meet him and make sure he doesn’t have the gun visible,” he adds, noting that the citizen would be asked to put the gun away. If the citizen’s statement matches up with the evidence, and the shooting wasn’t gang-related, a long-standing dispute between neighbors or is otherwise dubious, the job of the uniformed policeman usually becomes nothing more than to contain the scene for investigators, he explains.
How did Huntington determine if the situation merited skepticism? “I was very careful not to make any judgments until I actually looked at what was happening, so I would always say, ‘Can you tell me what happened here?’” he answers. “See, the homeowner is there with his wife and children and his hands are shaking and he is obviously distraught and says, ‘We were sleeping and there was a loud noise and glass breaking. I got my gun. I came out here and there was somebody in my house. I said get out of my house, and he came at me with this knife (and there is a knife laying there). I shot him, I don’t remember how many times, I just shot him and he fell down. Then I called the police.’ You usually hear something like that. So in that situation, I would say, ‘OK, I understand completely. Sit down, why don’t you? I’ll cover the body up. The detectives are en route.’ That is usually all the preliminary response unit would do.”
When I commented that I was surprised he hadn’t described confiscating guns and putting the shooter in the police car, Huntington explained that the officer’s actions largely “hinge on the response of the homeowner. This is especially true if you get the Felony Cop (Huntington’s term for a hard-charger who enthusiastically exercises his power) who is anti-gun! They are out there, so be respectful and honest,” he adds.
“You don’t have to be subservient, just respectful. A good cop–one with eight or ten years in the field–can read people pretty well. If you’re not being honest or if you’re acting subservient but that isn’t how you really are, I’m probably going to spot it and say, ‘Something’s up here.’ Remember that as a policeman you have to figure out if someone is lying to you within seconds of when you meet them,” he admonishes.
“When you have that initial communication with an officer something as simple as a gesture, a shrug of a shoulder or a shaking hand suddenly changes the entire color of the contact,” Huntington explains. “I’m watching their body language. I’m watching their skin color. I’m looking to see how their eyes are glistening. I’m very carefully listening to what they are saying and I’m watching their family react. Are the kids thinking, ‘That’s NOT what happened, Dad’?” he illustrates.
A shooter may be handcuffed or put in a police car owing to agency policy or for protection against a volatile crowd, but Huntington insists that even that can be done with respect. Even so, he adds, “I never handcuffed anybody in an obvious self-defense shooting situation unless I felt some obvious personal safety issue, it was a loony-tune or gang shooting or I felt this wasn’t a self-defense shooting,” he adds. He acknowledges that other areas of the nation where “you are presumed guilty until proven innocent” are different and there the citizen will be handcuffed and taken to the police station.
Can human compassion trump department procedure or override an officer’s world-weary outlook? “In all my years of being around cops, I have rarely seen a cop not respond to humanity if you are honest with them and you tell them the truth. Remember, too, what you say to the responding officer is going to get written down. The tone of the contact will be relayed to the investigating detectives and that will also contribute to the tone of their investigation and subsequent interviews with you.
“When the detectives arrive and they are talking outside the home, the cop is going to say, ‘When I first got here, he was really shook up but he was also really cooperative and he told me what I think is the truth. Here is what he told me…’ That is going to set the tone for the investigation,” Huntington explains. “Then they go inside and ask questions and you repeat what you told the responding officer.”
These early statements remain influential long after the initial contact. “Responding detectives usually recommend if a case should be filed–even though they are not supposed to,” Huntington warns. “They will tell the prosecutor, ‘I think this is about as clear cut a case of self defense as you’ll get. I don’t recommend that you prosecute.’ I have been privy to this many times where the prosecutor called and asked, ‘Well, Roy, what do you think? Does this guy deserve jail time?’ because he was trying to get a handle on it.”
Even if an anti-gun district attorney under pressure from an anti-gun electorate files charges, the police officer’s testimony can convey the truth to a judge or jury. “On the witness stand when they ask the cop, ‘What did he say?’ any detective who is worth his oats and knows that you are telling the truth will say, “Well, when I got there, Mr. Jones was obviously upset and distraught and I could tell that he so hated to have done what he had done and he said, and I quote, ‘Gee, officer, thank you for coming. I was defending my family. I didn’t know what else to do.’” Huntington details how even on simple traffic stops he jotted down what the person first said for use later in court. Expect savvy officers to offer written records of your initial conversation when they testify, he cautions.
DON’T GET SHOT!
Speaking from his experience policing in the mid-west, Rich Grassi postulates that initial contact with police may go wrong because the armed citizen knows that he or she is the victim of the attack and cannot imagine being mistaken for a criminal. “After an absolutely righteous shooting, someone has experienced a lot of physiological affects,” Grassi explains. “Then they hear a loud voice behind them and they can’t make out the words, ‘Police! Don’t move!’ so they turn suddenly with a gun. Not a good move!” he exclaims. “First, if people aren’t conversant with that aspect of it, they need to train a post-shooting procedure to survive the encounter with the police. The first things is, ‘Don’t get shot by the police!’”
Grassi explains that when responding to a shooting, “I’m taking control of the one that is upright until the one on the ground with the steam coming out of his chest is proven to me to be the problem. You should expect that. It is not personal. Police are going to talk to you in a way that sounds abrupt, like, ‘Police! Don’t move! Get your hands up! Get ‘em up!’”
“While you are hearing this, try not to take offense, just do what they say. Once they get you in handcuffs the smart cop is going to want to know what is going on. You need to say, ‘Officer, I have a permit for this firearm. This guy was here to murder me,’ and give him a précis of the situation. Just say, ‘This guy tried to murder me, officer.’ Avoid details about WHY the guy wanted to kill you,” Grassi advises. “They have to know WHY you pulled the trigger. You have to be able to articulate something. They’re trying to be reasonable,” he continues. “Try not to give the whole crime story in one paragraph ten minutes after you shoot,” he advises. “That story is going to be trash because frankly you are not going to tell the story that happened. I know that you want to help in the worst way, but if you do that, your story will be told in the worst way,” he quips. “Don’t! Just stop!”
“You can say, ‘He was near the oil spot on the pavement over there; I was here. This is what he said. When he turned around, I saw the gun in his hand. There was a witness over here, five feet, blond hair, wearing black clothes. That was all I could see. There was a guy over here with a red ball cap on, but that is all I can remember about him.’ That is the best you can do. What have I given? Approximate distance without saying what the exact distance was. I’ve given potential witnesses to the scene, and the short form of what I observed,” Grassi adds.
Asked if declining to give specific details heightens suspicion, Grassi recommends drawing parallels to experiences the officer may have had. “‘If you’ve ever been in a shooting or were around one, you know how jacked up you were? I was scared to death, so please understand that I can’t go into too much detail right now.’ Or say ‘Officer, have you ever been in a chase? Did you try to remember everything that happened in the immediate aftermath of that chase to put it in your report?’” he narrates. Asked about the risk of sounding cheeky, he adds, “You can make it that way, or you can say, ‘Well, I am sure you have had this experience.’ You are asking them to stand in your shoes.”
“Bear in mind that after a serious event your behavior is going to be dictated by the extent of your injuries,” Grassi points out. In some of these incidents when the police are talking to you, you may be on a gurney and being put in an ambulance. If you think you might have been shot and you are not sure, you might ask them to do a leak check as they are handcuffing you.”
In Grassi’s experience, the first officers that respond to a call about a citizen using a gun would also be tasked with gathering critical information, and so they are going to ask you questions. “The overwhelming majority of these incidents happen at night. As a result, there is not going to be a detective available immediately. Most police and sheriff departments don’t have detectives available 24-7,” he explains.
Where is the citizen held until it is all sorted out? Grassi predicts, “You’re going to be in the back of a police car and you will probably be held there for a while. Often these cases occur at home, and you may be held inside your home, though you would be in handcuffs.” Other situations may see the citizen taken to the police station for questioning. The Fourth Amendment allows law enforcement to seize the shooter and other evidence, Grassi explains. “Because you were part of a scene of violence, I can’t just let you wander off. I have to arrest you and I’m seizing your gun.”
Of course protocols vary from one agency to the next, Grassi notes. Where he worked, the shooter would be taken to the police station where, “I would usually get him a coffee and then we would pull out the Miranda warning.” The 1966 Supreme Court ruling in Miranda v. Arizona requires giving that familiar warning before custodial interrogation by a law enforcement officer. Grassi’s agency required that the interview be videotaped. “You have no expectation of privacy,” he warns. “You must assume that when you talk to a police officer that your conversation is recorded” because despite various state law on recording, the Federal rule is to allow one-party consent.
“Even if I have you in the back of a police car and I put your spouse in there to talk to you and you go, ‘Oh, gee, I guess I am in trouble now that I had to shoot that son of a bitch,’ that is going to be recorded and good luck keeping that from a jury!” he cautions.
Asked about the likelihood of being jailed until investigators were available, Grassi estimates, “In a holding cell? I don’t know it would be that way. Most jurisdictions have an interview room that is secured. In an interview room, just presume that you are being recorded on videotape. Now, don’t put on an act! If you are so shocked by what happened to the extent that you actually have no feelings, well, that happens to some people,” Grassi explains. Experienced officers will recognize the preternatural calm that accompanies severe shock, he predicts.
The victim should not give exact details including distance from the assailant or how many shots either he or you fired, Grassi reiterates, noting, “Now we get into details with which I am not going to be accurate.” Avoid details like a description of an assailant’s gun, he adds. “There would be so many things I couldn’t tell because I just don’t know and I’m not going to know until I start to settle down and that might take some help.” With a minimum 24-hour delay before taking statements in an officer-involved shooting common, Grassi asks how the same consideration can be denied the citizen.
When I express concern that failing to answer questions until 24 hours have elapsed may breed suspicion, Grassi responds, “That may be something for the attorney, not you, to bring up. Obviously, you want the attorney to be there, and they can say, ‘Fellows, a 24-hour wait is in your own policy. Come on! This guy has a business here in town. He’s married and has a history here. He is not going to run away.”
POLICE CONCERNS AT A CALL
We start our conversation with Furhman by asking about officer mindset during initial contact with an armed citizen who has acted in self defense. “You have to go in with an open mind because you don’t know what you are going to see or what kind of interaction you are going to have with somebody,” he explains. Today’s officers “are much more sensitized to people being victims, as it is so prevalent. It crosses into their own families even,” he suggests, adding that police–once mostly Irish or white–now come from all heritages, and “growing up in their own cultures inside the United States, they are more apt to deal with law enforcement well before they become a police officer.”
Entering a shooting scene requires considerable vigilance, he continues. “Your senses need to be very sharpened, you have to see in a 360-degree view, and you have to be able to interpret things very quickly. You may have your firearm drawn, your heart racing, because you are coming into an environment in which you don’t know what is behind a door or corner. Homes are not built as cookie-cutter homes, so you are not going to know the easy path through. You have to be very, very aware with every step you take. The safety of you and your fellow officers is the first thing,” he details.