Sgt. Patrick Hayes [not shown] writes:
A recent TTAG thread dealt with the immediate aftermath of a defensive gun use. The responses ran the gamut from full cooperation with the police to saying nothing at all. As a 20-year law enforcement veteran I have investigated several DGU cases. In each case the shooter was cleared of any wrongdoing. Each was ruled as self defense and a lawful use of force. I live and work in Georgia, a pro gun state, and unfortunately that does make a difference . . .
In Georgia when a person claims lawful use of a firearm, we investigate to determine if the facts support that claim. We process the scene, take witness statements and interview the shooter and the person who was shot, if possible. Notice I didn’t use the word victim. In a DGU the shooter is the victim.
If the facts indicate a defensive gun use, we contact the District Attorney and give the case facts to them. If the agree that a defensive use has occurred, they will normally tell the shooter to come in for an in-depth interview at a later date, with an attorney if they wish.
This is important…if the facts indicate a lawful gun use, NO crime has been committed and NO probable cause to arrest exists. For this to occur the shooter has to provide certain facts to the police.
The basics:
- What the offender (the one who was shot ) did: “The man came to my door with a gun. He kicked my door in.”
- What you (the shooter) did: “I feared for my life. I had no choice. I fired my gun and the man stopped attacking me.”
- What evidence exists: Your gun, his gun, your door.
- Who witnessed these events, if anyone
Be sure that the officer or investigator knows that you fired in self-defense. After those questions are answered politely, tell the investigator that you will give a full statement after you speak to your attorney (who you should have called right after 911). This will be a normal response to most cops. We expect it.
What happens if you say nothing at all? What if you demand a lawyer right from the start?
Presumably you called 911. You told 911 that someone was shot. You may have told 911 what the bad guy was doing. You may have told 911 that you shot him. Guess what? All of that is admissible in court. If you don’t answer some basic questions or give some basic information, you are part of a homicide investigation, not a defensive gun use.
You will likely be arrested and charged with murder. You won’t have a bond. You will get a lawyer at some point. Your lawyer now has to convince the District Attorney — who in turn has to convince a judge — to set a bond. The DA and the judge will likely ask why the suspect didn’t tell the story to the police. They may or may not believe you. Your self defense claim just became a trail defense.
This is the most important part: to get out of jail you will have to tell the District Attorney your story. The same story you wouldn’t tell the police because they could “hold it against you in court of law.” And the district attorney is the person who “holds it” against you.
The point is: if you use a firearm in self defense, the burden of proof is on you. The state simply has to prove you shot somebody. You have to show it was lawful self defense. That is a whole lot easier if the cops investigate with that in mind. It’s then a whole lot easier to prevent charges being filed than to fight the charges later.
Keep it simple. Tell the cops the basics. Bad guy did this…I feared for my life…I shot him to stop his attack. It was self defense…there is his gun…here is my gun….. Mrs. Jones across the street saw the whole thing…I will give a full statement after I consult my attorney.
As you know, there are pro-gun state and there are anti-gun states. There are good cops and bad cops. Keep it simple and you should be OK.
This is good info…. I agree.
If you STFU you will go to jail, directly to jail, not pass go, and not collect $200.
If you were reporting that you were assaulted you would not call 911 and then stand mute when they got there. Same thing here.
And you’re a fool if you talk to ANY LEO without an attorney after a DGU…
Did you even read the article above?
I completely agree Patriot. STFU until you speak to an attorney. Everything else is foolish,
Im sorry, i dont buy it. To many DA’s and police officers want to make a name or are anti-gun. Look at how open carry is treated by some officials. I honestly believe that everyone but your lawyer is your “enemy” until vetted otherwise.
Agreed. There is a reason why people who immediately get attorneys have a lower conviction rate. Lets go with the data, and with all due respect, not anecdotes from a cop.
People who say nothing are objectively less likely to be convicted. You are not obstructing by consulting with an attorney firsts. And you are NOT suspicious for doing so. Cops have and almost always involve their rights to have their union reps/attorneys with them before giving a statement on a shooting
Does this data you reference suffer from selection bias?
How do you have data for the the DGU’s for which no charge was filed at all because. It seems to me (and I could be wrong) that you are talking about data where in the charge was made and we either have a conviction or we don’t.
The DGU cases I investigated all ended up with no charges filed as determined by the DA or Grand Jury.
You don’t buy what? What is your alternative? Do you not understand the meaning of ‘affirmative defense’?
He also makes an incorrect statement:
The point is: if you use a firearm in self defense, the burden of proof is on you. The state simply has to prove you shot somebody. You have to show it was lawful self defense.
This might be the case in GA (if so, that’s yet another excellent reason to avoid GA). In pro-gun states (such as AZ), the prosecution doesn’t simply have to prove an event happened, it must prove a crime happened: that the shooter shot the victim, and that it was an offensive action.
“…if you use a firearm in self defense, the burden of proof is on you. The state simply has to prove you shot somebody. You have to show it was lawful self defense.”
In what otherwise appears to be an excellent source of advice based on real-world expertise, this particular piece may not be as clear as one could hope.
IMO, what he is meaning here is that in the immediate investigation it is up to you to provide (just enough) information to convince the police and DA that this was a justifiable shooting, not that the legal burden of proving this is up to you.
While it is certain that if you are arrested and brought to trial you are “presumed innocent until proven guilty in a court of law” what is being suggested here is that you have an initial opportunity, used judiciously, to avoid that step by providing just enough proof of your innocence to avoid the arrest and trial part of the scenario.
You’re right, the story’s wrong. I have taken many self defense classes, and have attended countless seminars and classes dealing with the use of deadly force, and in every single instance, from many different instructors who were either past or present law enforcement officers or attorneys who were either past district attorneys or worked in a district attorney’s office, they all said, to a man, “the worst thing you can do is to talk to ANY law enforcement officer before you have the benefit of council.” The proper move to make is to let the LEO on scene know that you were the complainant, that you are the one who called 911, and that you will be happy to make a statement and cooperate fully with their investigation in 24 hours, AFTER you have had the opportunity to confer with your attorney. Until then, REMAIN SILENT! Yes, you might have to sit in the tank until your attorney gets there and you can get things straightened out, but this is a small price to pay to protect yourself from an overzealous cop or a publicity hunting D.A. KEEP YOUR MOUTH SHUT! If you are the one who has to call 911, tell them that a defensive shooting has taken place and that you need the police at such and such address. Don’t say anything else. They will try to engage you in conversation, tell them you don’t have anything further to say and you will wait for the police.
Always remember, neither the cops, nor the 911 dispatchers, are your friends, don’t think for a minute that they are. They work for the STATE, not you!
Were you dropped on your head? How can you possibly argue BOTH that a defender should absolutely NOT say ANYTHING to responding police AND ALSO argue that they should speak with responding police?
Here’s you saying that the defender should not make ANY statement before the benefit of legal counsel:
“they all said, to a man, “the worst thing you can do is to talk to ANY law enforcement officer before you have the benefit of council.”
And here’s you in the VERY NEXT SENTENCE advocating that the defender speak to those exact same LEOs before the benefit of legal counsel:
“The proper move to make is to let the LEO on scene know that you were the complainant, that you are the one who called 911, and that you will be happy to make a statement and cooperate fully with their investigation in 24 hours, AFTER you have had the opportunity to confer with your attorney. ”
Well, which is it, genius?
Sheesh.
–Andrew, @LawSelfDefense
“Keep it simple. Tell the cops the basics. Bad guy did this…I feared for my life…I shot him to stop his attack. It was self defense…there is his gun…here is my gun….. Mrs. Jones across the street saw the whole thing…I will give a full statement after I consult my attorney”
I said this in a comment a few months ago and got jumped on. So of the counter points were valid about STFU but the fact is, like you said, some basic info is needed up front or you will be arrested on the spot or soon there after. However too much is a bad thing, in a gun unfriendly state or area, it can mean a lot worse. Where that line is is different for every incident, every location, every person. It’s up to you to find out what kind of environment you live in and plan your best strategy. If you carry a weapon, you need to do everything, even the “un-fun” stuff like legal research.
The bottom line is you should have an attorney listed in contacts or on a card in your wallet. Do some reasearch and find a good criminal defense attorney and have that number ready so if anything ever happens, you aren’t fumbling around after a DGU. I am a 20 LEO as well and know the shakey hands and confused manner of a post traumatic event. Most people are a mess and the sound of a calm person (i.e. Attorney) on the phone can help get you through safely. I am a PBA and a FLEOA member, I have personal liability insurance and NRA membership. What do you, as a citizen gun owner have? You may be mentally and physically prepared for a DGU, but are your legally ready. I think that’s the point of this article and others like it and it’s a very good point.
If there is a witness it is better to have the witness say what happened to achieve the same result.
There is a benefit to getting the immediate investigation sympathetic to you, but you need to do this by saying the least amount you can. If a witness can provide the sympathetic story then let them tell it.
A witness rarely sees and hears everything. Without the context of the shooter’s story it might look like an argument that went bad instead of an attempted robbery.
Eyewitness accounts are notoriously inaccurate. They are certainly part of the investigation, but I wouldn’t rely on someone else’s testimony to make my case for self-defense if I can take an affirmative defense (albeit with the advice of an attorney.)
There’s nothing inconsistent between an affirmative defense and eye-witness testimony, or any other kind of evidence. Whether a defense is affirmative has nothing whatever to do with the types of evidence one might consider.
Folks keep using the phrase “affirmative defense,” but I don’t think it means what you think it means.
In any case, while eye-witness testimony is often mistaken about details–e.g., how many shots were fired–it’s rarely mistaken about the issues that are generally most important–the black dude was on top of the white dude. It’s also typically among the most compelling evidence from the perspective of jurors.
–Andrew, @LawSelfDefense
There were 2 people in Wi. that “went it alone” no attorney & they were fine. I would not like to try that in a rabid liberal state. In that case I would just refer them to my attorney.
excellent to hear from Law Enforcement on the matter.
I honestly wish that each Department had an outreach program to help citizens defend themselves intelligently. Minimal fee training. Advice on firearms. Advice on interacting with officers. REAL advice on safe storage that balances the purpose of buying the gun in the first place. Advice on interacting with the police when firearms are involved.
This. They could also run self defense classes for school administrators and teacher volunteers. Probably pay for it out of donations from grateful parents and crime victim penalties extracted from convicts and the portion of leftover DROS funds.
In fact this is part of what NRA does. Just need a few more pro-2A blogs to spread the meme. A practical counter offensive PR and education campaign vs the ineffective gun-grabbers. Individual parents especially women are buying guns in record numbers anyway. Why not help them be better and safer defenders of their own homes and children?
All we need is a Daddy Warbucks and an attractive and credible young female role model with parent and granparent shooters stepping up as heads of chapters around the country.
Safe storage = in the hand or on the hip.
That must make showers, the beach, and bedtime awkward…
Speaking of this one of my students recently took a women’s self-defense class from the University PD (real sworn officers with powers of arrest not rent-a-cop observe and report types) and I was fit to be tied when she told me their strategies for a woman to defend themselves.
– No to conceal carry, they will take it from you
– If they trap you by your car throw the keys in X direction and run in Y… because the rapist is after your car
– Push their hips off you and use the flat of your hand (not a fist or the edge) to strike the side of their neck because you don’t want to hurt them
We had about an hour discussion on how these and many of the other pieces of advice are rubbish and I primed her with some questions to ask at the next class about lethal force, what to do with multiple attackers and all the other scenarios discussed in terms of self defense. She was almost thrown out of the class because of them but also said most of the women were much more suspect of the LEO instructor after he fumbled or refused to answer them.
I say all that to say this, you are right that we need GOOD LEO classes and community outreach. Even here in the heart of Texas though there are to many who are teaching rubbish in relation to firearms and other critical topics.
On a positive note after discussing this topic with my student she is now looking into funding her CHL class and looking for an appropriate carry piece and on-body holster.
Campus cop = mall cop with big paycheck.
And state benefits.
“…REAL advice on safe storage that balances the purpose of buying the gun in the first place.”
Were this available as opposed to mandatory I would whole-heartedly approve and participate!
A few days ago I was sitting at my desk at home and heard outside what at first sounded exactly like a mag-dump from an AR. Three shots – 5-4-6-2, and so on. Very random, but all in immediate sequence. My first thought was “Active Shooter – in MY backyard!” My next thought was, “Oh carp, I have my 5-shot J-frame next to me on the desk (this is my usual home carry), my 18 shot Ruger is in the safe and my 20 shot long gun is in the closet with the mags locked in the safe!
So, having provided safe storage for my firearms I was now in a difficult situation if someone armed with an AR or AK was actually targeting my neighborhood. Some previous useful advice on this point would have been very welcome.
Luckily the sounds stopped after maybe forty rounds. I looked carefully out the blinds and saw a maintenance worker repairing the vinyl siding on a nearby building using an electric nail-gun. But it just goes to show that you NEVER know what might happen and I now need to re-think my weapon and ammo storage protocols
You know, Sgt. Hayes did such a Joe Friday like “The facts, just the facts, ma’am.” That I’m inclined to take his advice as opposed to listening to the usual drivel from the interwebz commandos.
Except the data does not support the sargent
So you claim. Where is this data?
What data? You have reliable resources focusing on DGU’s?
Zimmerman was in a pretty pro gun state. Things didn’t work out so well for him once the media got ahold of the caper.
To the extent that “things didn’t work out so well” for him, I would argue that Zimmerman is the exception that proves the rule. He co-operated with the cops, and initially they declined to file any charges. If the racial element hadn’t been thrown in, and taken up by politicos all the way up to the White House, that’s where the matter would have ended. And St. Travon of the Skittles didn’t even have a gun. It is also highly likely that when things did go south for Zim, his initial co-operation helped him more than it hurt him.
> It is also highly likely that when things did go south for Zim, his initial co-operation helped him more than it hurt him.
Another Robert, obviously you didn’t watch the Zimmerman trial. He called the Sanford police nonemergency number and reported suspicious behavior, voluntarily spoke with the police all that night after the shooting, then did a video recreation of the incident with them the next day. That is the only evidence the prosecution had against George Zimmerman, his own words.
The prosecution tried to use Zimmerman’s own description of the events to the police against him. George Zimmerman spent hours and hours with various patrol officers and detectives going over the sad events of that night. He voluntarily performed a video recreation of the event the next day. I’m sure he thought he had nothing to fear from simply telling the truth. Unfortunately he thought wrong.
All the evidence the prosecution admitted was either easily proven wrong, perjured, or it actually supported Zimmerman, so the prosecution spent two hours in summation remaking its entire case that Zimmerman lied in his statements to the police, which they played in great detail point by point. They contrasted miniscule point against miniscule point, and they weren’t above lying outright, which they did nearly a dozen times that I counted. They never relied on their evidence, because it was either unreliable or actually supported Zimmerman. In the State’s summation they made an entirely new case that Zimmerman lied because in hours and hours of voluntary statements without an attorney, they perceived a few inconsistencies, whether they really existed or not. They used those to paint Zimmerman as an intentional liar and that he was trying to craft a defense after the fact out of whole cloth.
If this case does not stress the point of never talking to the police without an attorney, I don’t know what does.
I think Zimmerman proves that the real enemy is the libtard (dem) district/county attorney. I know the county shysters in my area. One county is a RINO the other is a full on leftist. Both prove my theory that the have the job because they aren’t competent to operate a full private practice so on the public dole. Welfare for the over-educated unproductive.
Yep. I can see having a card in walllet with same four bullet points so you can review and remember what to say and shu up after. Maybe written on back of your attorneys card.
This post shooting prep is just as important as basic gun handling training if you are buying it for HD. I’d expect a good CCW trainer to address it per the state law on elements of valid self defense, castle law, and SYG if applicable.
Amatuers argue strategy. Pro ‘s argue Force Continuum. (TDIINVA u there?)
It really does depend on the state in which the incident occurs. In my home state, PA, the structure of recent statutes (SYG, no-civil-suit Castle Law) very much encourages us to give what I will, smiling, call a Hayes Statement. It can (and so far does) save you a night in jail at the very least.
It should said that such a statement should only be made when the facts are unambiguous. If you’ve landed in a gray situation it’s better to take the night in jail and await your attorney.
If you have military training you probably remember having to take your gas mask off in a tear-gas filled building and recite your name, rank, service/ssn number, and date of birth while the gas stung you. That is how well you’d better control yourself and know the limits when making your statement. And do not answer question once you are done.
Excellent analogy. Spot on.
But, back to the original thread that was referenced, what happens when you say you were in fear for your life and the investigator asks, “why”? Now you’re back to giving a statement on the spot with a million things running though your head that someone can pick apart later, and if you live in a liberal state, good luck with the cops being understanding. Keeping quiet may become a trail defense but saying something without an attorney can put your neck in a noose that you can’t remove later.
You do not have to keep answering questions just because you began. But seriously, if you can’t articulate the basic reasons why you were in fear for your life, you may want to go ahead and STFU because you may just be a murderer.
Or he may want to STFU because the cop’s question should indicate to him that he was not calm enough to get said what needs to be said…all in one go. Better to cool off for a night and let his attorney get his feet on the ground and his brain in gear.
Worse, a bad cop can take what you said as evidence, even if you didn’t say it. Some cops are anti-gun, and or they are out to make a point. I’m not one to leave that to chance, when life imprisonment and/or the death penalty is on the line. Heaven forbid it be some kid whose parents decide that you were let off by the cops too early and end up getting Jesse Jackson and all to make a national case, and get the president to talk about how “If he only had a son…”
Point is: It’s better to get a lawyer to do the talking. As Ben Franklin said, “It’s the innocent who need lawyers. The guilty can lie for themselves.” When the officer arrives, you want to say as little as possible, to prevent yourself from ending up saying something that may incriminate you. Before you say a word, ask “May I record this conversation?” This way he cannot say you said something that you did not. If he refuses to allow you to record the conversation, then SHUT UP! Wait for a lawyer!
Once you give your initial statement, I would recommend deferring any formal statement until you have:
1. Calmed down and get back to a clear head.
2. Consult an attorney.
This is exactly what veteran cops do after a shooting.
” I live and work in Georgia, a pro gun state, and unfortunately that does make a difference ”
Unfortunate, yes. Even in states that are very friendly to people carrying, there are departments that are not very friendly to civilians who carry. Give out the basic facts of what happened but don’t start blabbing away your whole life story. Too much information can be a bad thing.
Not just state, but the area, too (e.g. Central VA vs NOVA).
Ugh. Don’t ever talk to the police. This article is complete BS and the only proof that needs to be conjured is if the DA thinks you murdered someone, he’ll have to prove it. You have to prove nothing. Innocent until proven guilty is the way the law works. Do not seek legal advice from a police officer. They will lie to get more information from you and they are legally allowed to do so.
At most, tell the officer that you feared for your life and will corporate fully after consulting with a lawyer. You will most likely be arrested. That is normal. Best to have a lawyer on retainer. It sucks, but such is life.
Once again, never talk to the police beyond the absolute necessary requirements. What you say can be held against you, not to support you.
“You have to prove nothing. Innocent until proven guilty is the way the law works.”
You are wrong, sir, and demonstrate exactly why people should not listen to advice given on the Internet.
This includes what I am about to type, so please…if you want the real answer to this, consult a trial lawyer with experience in trying homicide cases IN COURT.
Where you are wrong is that the self defense is an “affirmative defense.” You acknowledging that you killed someone, but you claim to have a reasonable exception for doing so.
Affirmative defense in court shifts the burden of proof to you, the defendant. “Innocent until proven guilty” applies to the “you killed someone part.” You are not denying that; you are giving a reason you did it, and the burden of proof for that is on you.
JR,
Good point on the “affirmative defense” aspect. And that is why I will say absolutely nothing. If I have said absolutely nothing, I have not admitted to shooting or murdering anyone. Therefore I have made no claim of an affirmative defense and I have no burden of anything. I can always make that claim later if my attorney recommends that course of action after reviewing the facts of the case with me in private. But once I make the claim, I cannot unmake it.
Sure there could be multiple firearms and shell casings on scene. There could be gunshot residue on my arm and on the robber’s arm. Let any evidence and witnesses on scene tell the story.
That’s one approach, but do consider what the article above is saying (and is consistent with my experience in homicide investigations as well…though admittedly also in a gun / sd friendly state).
That is, you can you avoid it ever getting to the point of being an arrest and hearings and trial in MANY cases by giving the basic facts up front. If you are present at a shooting scene and there is PC you were the shooter, there will be an arrest (as part of securing the scene…before any investigation gets done) if you clam up completely.
Such an arrest may be avoided (at least there’s the chance of that) if you give the BASIC facts of what happened and let the investigation go from there. There are many, many DGU’s where no arrest (or subsequent prosecution) is made, but I can’t see that happening with an uncooperative defensive shooter.
In the end, though…personal choice.
Didn’t SCOTUS recently find that, in oder to take the 5th, you must actually state you are taking the 5th otherwise your silence can be used as “evidence” in court?
JR,
Also excellent points. They key that you stated is how a person can avoid ever getting to arrests, hearings, trials, etc. if they provide some basic facts on scene to police. And, as Skyler stated in a comment, it is extremely important to gain the confidence and empathy of investigators … which is next to impossible if you say absolutely nothing to police on scene.
No matter how we slice it, violent criminals put us in jeopardy twice: the first time during the actual attack and the second time in the legal aftermath of the attack. The reality of the situation is that there is no course of action without risk. Providing some basic statements to police on scene has definite risks. And being completely silent also has risks.
In an ideal world all police, district attorneys, and judges are righteous, honest, noble people with no character flaws or personal ambitions and every case flies through the criminal-justice system fairly, honestly, and promptly. However, that world does not exist. So we end up taking our chances one way or another.
Gene, not exactly. That was a very specific set of circumstances.
As to the rest… it’s true you can’t unring a bell, but the options are not “say something incriminating” or “say nothing and end up behind the 8-ball.” The best option, and one pointed out in the article, is to get the basic facts out there.
Affirmative defense would be covered by the “I feared for my life. I will corporate fully after I talk with a lawyer.”
You made a statement of fact that you thought it was a self dense via the above quotation. If you go into details of anything, they can be used against you in a court law.
State the basic. Then shut your trap. Do not corporate with the police until you have sought council. This is basic 5th stuff everyone should know.
And talking will not save you form being arrested. The police may arrest you at will, for anything. The validity will have to be sorted out later.
Balance here.
It may cost a lot of money to have the DA try but not prove his case.
Yes, and truth be known it is not in practice a protection that ‘the DA has to prove you are guilty.’ Your attorney also has to prove that the DA’s case is full of holes and his witnesses are a box-car load of liars and criminals. A false case can be proved true. There really is an advantage to getting the basics out there succinctly if you have discipline and the statement you make is not counter-factual.
Remember, though, that you can assert your SYG and Castle claim later, with your attorney present. It is not a matter of “say it instantly at the scene or else you go to trial.” That is very important to remember. “When in doubt don’t blurt it out.”
“Innocent until proven guilty” still entails some time in jail and an arrest record.
“I was in fear for my life” may avoid that.
Reread what I wrote.
What you wrote is ignorant of the legal system, as was your first post. Those are not magic words that will stop you from being arrested and having to deal with the very serious implications of being in the hands of the justice system. If you want to play that game, go ahead, but you’re going to win stupid prizes.
Generally echoes my thinking on a DGU, but don’t overlook the money quote from his post:
” I live and work in Georgia, a pro gun state, and unfortunately that does make a difference . . .”
I’m in the Denver metro area, and the jurisdiction will make a big difference. The City of Denver would definitely look on things a bit differently than one of the suburban jurisdictions.
I think there are three things to remember in a DGU. One, your memory will be sketchy. Two, it’s the cop’s job to be skeptical of your story. And three, you will be spending (at least) the night in jail if you clam up. I agree with Sgt. Hayes, keep it to the most basic facts and tell them you’ll make a full statement with your lawyer.
Well written article, but it’s easy to miss the most important point. He’s in a gun friendly state. In another state, current politics, recent events, all could make my situation much worse. “My lawyer” will be a public defender, too. Weakness from muscular disability and the need for commonly abused drugs, not to mention being in my 60’s, cause me to feel the need for a firearm to defend myself. SS disability doesn’t pay enough for me to own a lawyer (they’re terrible pets, messy, expensive, and talk funny). Trying to make room in my budget for self defense insurance, but most programs also refer to “my attorney.”
You need one of those trunk lawyers.
LOL
Similar situation here. Disabled, getting by on Social Security, can’t run (can barely walk, some days), can’t fight, and the only time in my life I’ve had contact with a lawyer was my divorce twenty years ago.
What complicates matters in my case is the fact that if I’m locked up overnight without access to my meds and associated equipment I’m likely to wind up in the hospital, or worse.
The area is fairly CCW friendly, but I have no idea how the local police (Kirkwood, Mo.) feel about the subject. Given our age and quiet lifestyle, a home invasion is the most likely scenario, so, while I do carry everywhere it’s legal, common sense and avoidance of sketchy people, places, and activities should minimize risk of a public confrontation. Armed response of a homeowner against an unknown invader is more likely to be seen as justifiable by most cops and DA’s than a fight on the street.
Having said all that, DON’T put yourself in the position of depending on a public “defender” if you can help it. It rarely ends well.
I agree with giving the basics such as “I feared for my life”, “there were X assailants and these are their descriptions”, “did you arrest the person I shot”, and whatnot. I am still going to have a lawyer for anything deeper than that.
For me, it took 7 years in military law enforcement and a degree in Criminal Justice to learn that a simple mistake in the wording of a statement will convict you for a crime you did not commit. I work with lawyers every day, and they will argue the meaning of a single sentence for days, and they will attack with everything thing they have to prove that a sentence meant something it did not. These people are experts at manipulating the written (and unwritten) word. Trust me, you do not want to play their game, for you will lose.
If you need an example, look at Zimmerman. He was very helpful to the police, and from that, the police decided it was a DGU. But in the end, it did not stop the prosecutor from taking it to trial, and they dug deep into the meaning of every word Zimmerman uttered.
Agree. Cops follow rules of procedure gather evidence and present the facts to the DA. Prosecutors are by the nature of the job political creatures. If there is a high % for a win an/ or political pressure they will go for it. Re: Zimmerman remember the locals had already called it a dgu. Then DOJ weighed in along with StateRunMedia in support of the Gun-Grabber-In-Chief. And Corey whats her name did as she was told….
Zimmerman’s case was an exception in several ways. There are many DGU’s every day where no charges are filed.
We have to keep our eye on the ball here. Using the Zimmerman case as a prototype for pretty much ANY aspect of DGU is similar using Newtown as a prototype for how guns are used by general gun owners. Zimmerman was pretty atypical.
But, yeah, Zimmerman does show that you never KNOW how things will go in the long run…but that is always possible whatever you do / don’t say or who the DA is, etc. We live in an uncertain world.
Agreed. Zimmerman was actually a case where a statement convinced the police and eventually the jury, but that’s not always enough.
clamming up immediately is not the answer. you have to articulate your fear for your life or the cops will fill in the blanks for you….and that is NOT a good thing.
no disrespect intended, but in some states it takes more training to be a beautician than a cop.
The quote that always comes to mind in these discussions … “never get off the boat” .
Lol not even for mangoes
Bye Tiger!!!! Bye Tiger!!!!
Regrettably, there’s no one stop method we can employ on this topic.
It goes without saying that the post home defense shooting ROE for a rancher in Wyoming will be very different from that of an LA or DC resident.
Even in pro gun rights states, there are DAs and police agencies sprinkled about who think guns belong in museums and in government holsters.
Further, it’s impossible for everyone to know the political leanings of every county and city they’re passing through when travelling.A pro gun DA back home can’t save the country man from a bastardized process if he’s in a DGU at The Big Blue City-and every state has one.
The Sgts advice is helpful, as are the previous articles on the topic. Unfortunately , each person has to decide their own approach to The Aftermath based on local attitudes, culture, and their local governments attitude.
I defended my self because I was in fear for my life; I would like to talk to my lawyer now.
Learn it, know it, live it.
Not good enough. Those are not magic words. You might be found not guilty but you’re going to have to have your life turned upside down in the meantime after you are arrested. Your finances will be spent and your career might be ruined.
You have to do better than that when you have a legit affirmative defense to avoid being dragged into the judicial system. Unless you’re good with losing your job, paying hundreds of thousands in legal fees and spending months in jail.
At least in my state the statements of facts and claims which can lead to avoidance of a trial do not have to be made at the scene. They can be made the next day at the jail with your attorney present. It is not a one-or-the-other situation.
It is unfortunate that a defender needs almost a legal education to avoid trial. With Angela Coreys loose in the world caution must be the watch word.
If your story is legitimate, then the witnesses and/or physical evidence will support it. You won’t need to say anything because the evidence will speak for you. Now, if the evidence isn’t there or it’s inconclusive, then you’re already screwed and your life will be turned upside down and inside out; more so or less so depending on jurisdiction. None of that depends on what you say to the police, though. Tell your story only to your lawyer, who is your legal buffer between you and the police.
You sure hope the evidence and the witnesses show your side. I worked on a homicide investigation that the defendant claimed self defense. He ended up with a 30 year conviction.
The problem was, and relevant to your comment, the physical evidence did NOT tell the story and the witness testimony was all over the map (due to high levels of intoxication). All the physical evidence showed as that a fight occurred and someone was killed. The details of “imminent threat” could not be discerned by the evidence.
In the end, I believe it was the defendants post-incident behavior that did him in. He fled the scene and when caught, did not cooperate with the investigation. He painted a picture of a guilty man with something to hide, and the prosecutor, rightly or wrongly we will never know, used that to effectively convince the jury it was NOT self defense.
Interestingly, too, in this case, there was a rather large disparity of force element in play…the deceased was a MUCH bigger man than the defendant, and it started with a fist fight. Had the defendant cooperated with the police initially (not spilling his guts necessarily, but not “acting guilty” as it were), the sd claim would have been a much easier sell.
Your mileage may vary. This is not legal advice. But we should all remember that there are no absolutes. If you think you can rely on the physical evidence to magically exonerating you, please remember this is NOT “CSI” or any other tv show. It’s often not that pat in the real world.
Well, flight from prosecution is itself in many states admissible as evidence of guilt. So I’d bet there’s even more to the story than what’s already been revealed. Probably not an upstanding citizen to begin with, which jurors do consider.
Look, I’m not claiming that you’re good to go so long as you’re innocent. Neither am i saying to go into isolation. I’m saying speak through your lawyer. If you say it directly, it can only hurt you. If your lawyer says it, it might help guide the investigation. You’re far, far more likely to talk yourself into prison than you are to talk yourself out of it. Be smart, hush up and let your lawyer do his/her job.
I don’t disagree with your larger points, just wanted to address:
“You won’t need to say anything because the evidence will speak for you.”
In the real world, that’s not always the case. Sometimes, the evidence can be ambiguous – or at least painted that way by “skillful” wordplay in court.
How you act right at the scene DOES matter. We agree on that.
Example: “What’s your name, sir?” “Wait til my lawyer gets here.” “Were you here?” “Wait til my lawyer gets here.” Etc. This may not look so great to even a sympathetic prosecutor.
We all should remember that the basic facts of “I shot him” are not in dispute. What’s at issue is your mental state (fear for your life), which is hard to know and even harder to prove to others.
I think the article writer was trying to say “Do what you can to paint that picture of innocence as early as possible…within reason.” A lot of the debate in the thread seems to be the details of what “within reason” means.
From the article:
“The point is: if you use a firearm in self defense, the burden of proof is on you. The state simply has to prove you shot somebody.”
And this is why our nation has gone to Hell in a hand basket. Hundreds of years of jurisprudence goes out the window because firearms were involved. What if there were no firearms, just fists? Say the VICTIM managed to deliver three fantastic punches in three seconds breaking the robber’s nose, and eye socket … causing horrific blood on the face and unconsciousness. Do the police by default arrest the VICTIM because the VICTIM has only a small red mark on his cheek and the robber is obviously on death’s door?
We have a principle in our nation called presumption of innocence. We also have the Fifth Amendment that states “… nor shall [any person] be compelled in any criminal case to be a witness against himself …”
I appreciate what the author of this article is trying to do. I am still not going to say anything to police without an attorney present when deadly force (whether the instruments of deadly force were fists, feet, or firearms) is involved.
No sir, 100 years of jurisprudence is not out the window. You need to look up “affirmative defense.”
An affirmative defense, such as a self defense claim in a homicide or a fair use claim in a copyright tort, shifts the burden of proof to the person making that claim.
This is nothing new.
Thank you JR … see my reply above to your comment about an affirmative defense.
As I stated in my reply, if I have truly been silent, I have not claimed anything — including self-defense. I still have the option later to claim self-defense which is an affirmative defense. But in the minutes and hours immediately following an event where I used deadly force to save my life, I am not going to say anything to the police without an attorney present.
You can still use an affirmative defense without talking to police the moment they arrive on scene. If you called 911 you probably already gave them the basic information such as your name, the fact that you were attacked and the fact that you shot someone. That’s all the facts that anyone needs at that moment before you speak to a lawyer.
And that’s exactly what the article above is advocating.
The point that was being addressed is not how to apply the affirmative defense, but to dispel the incorrect notion that in self defense cases, the burden of proof lies with the State.
No matter WHEN you invoke a self defense claim, at the scene or later it does not matter, it is up to you to prove that (in the strictest sense).
All you folks saying that the burden of proof on self-defense is on the defendant need to educate yourselves a bit.
That statement is only literally true if you are claiming self-defense in Ohio.
In every other state, once the issue of self-defense has been admitted into court (a very low threshold), the burden shifts to the state to disprove self-defense beyond a reasonable doubt.
Also, before throwing around terms from police procedurals like “burden of proof,” it might be worth learning what that term actually means–tip: there are at least two burdens of proof in any particular criminal charge or legal defense, and these two burdens may both be on the prosecution, both on the defense, or split between the two.
I thought the author of the post had it pretty right on. I do urge having a knowledgeable understanding of the differences in interaction with 911, responding officers, and investigative officers, but I suppose that was beyond the scope of this piece.
Yes, I am an attorney, and yes, I do specialize exclusively in self-defense law.
–Andrew, @LawSelfDefense
As I’m sure you know, probable cause is an easy threshold to meet when the police have only the story of who was the shooter. Probable cause is enough to turn someone’s life upside down. The only reason to let yourself get arrested when you could just tell them the basics of what happened is if you want to pay a lawyer’s kid to go to college.
I wasn’t referring to probably cause at all.
Probably cause is an entirely separate matter from affirmative defenses and burdens of proof.
–Andrew, @LawSelfDefense
Very well written sir. Would you agree that basic facts are OK just to establish a self defense claim? I, Like most cops would fully understand waiting to make a full statement until legal counsul is established. I am a cop and i would call my lawyer too, even on a good on duty shoot.
I covered much of this not even a week ago in my “Law of Self Defense: Question of the Week,” so rather than repeat it all here in a comment I’ll just point you to that piece: Should I Really ‘Say Nothing’ To Police Without My Lawyer? http://is.gd/f4Nqg3.
As you’ll see, my advice is largely consistent with Sergeant Hayes, although we naturally come at the issue from quite different perspectives.
–Andrew, @LawSelfDefense
Okay, so help me understand this in practical terms. Keep in mind that I am not getting my info from watching bs tv. I’ve been part of many homicide investigations and I’ve testified in court in a few.
To prove manslaughter, the State pretty much only has to prove (beyond reasonable doubt) that the guy is dead and that you killed him.
If you say NOTHING (ever…), they can prove their case. They are not likely to make a SD claim on your behalf without “help.” The physical evidence will show that he’s dead and that the bullet came from your gun.
Nothing else is needed.
SD is an affirmative defense (I notice that you did not contradict that part, so I’m assuming that means you are okay with me continuing to use the term), which means, and correct me if I’m wrong, that you admit that the basic facts of a “crime” exist, but that you have an explanation that constitutes a legal exception to the “crime.”
In simpler terms, you admit to killing him, but that since it was self defense, that killing is not a crime.
YOU (the shooter) have to bring that up at some point, and the evidence has to support it. Or, at the very least, the evidence cannot contradict it. This article, and the subsequent discussion, is about when to bring it up.
But regardless of when you bring it up, it comes down (in practical terms) that you ultimately have to show, somehow, that the action was self defense.
Or, are you saying that ALL I have to do in a DGU is say “It was self defense” and nothing else because from that point forward, the state must you it was NOT SD?
Are you saying that in trial, the defense need not present ANY exculpatory explanation other than “My client claims SD” in the opening remarks and all the balls are in the prosecution’s court after that?
Because, I must say, that has not been my experience at all in either investigating homicides or in seeing how they are were prosecuted in my non-Ohio jurisdiction. To make the claims of SD stick, the defense has to provide evidence of that in court (if it got to trial…not talking about cases where no charges are files or things are dropped pretrial).
I’d be happy to discuss this further off ttag if you prefer; let me know, and I’ll contact you via your web site.
JR, or anyone else, feel free to contact me off line if you like, I’m almost always on Twitter, @LawSelfDefense.
I certainly don’t want to domineer the comments on someone else’s blog.
In brief reply to your own lengthy comment, however, you have things pretty much correct, and your working definition of an “affirmative defense” is correct–an affirmative defense is one in which you essentially stipulate the elements of the crime with which you are charged, but put forward a legal justification or excuse (such as self-defense, or insanity defense, or duress, etc.) which relieves you of criminal liability for what would otherwise be a criminal act.
The mere fact that something is an affirmative defense, however, says nothing in particular about whether the burden of production or persuasion is on the defense or the state.
In self-defense, the burden is always on the defense to ensure that there is sufficient evidence in the record to support a claim of self-defense. This is called the “burden of production,” and is one half of what is commonly referred to as the “burden of proof.”
Normally, the amount of evidence needed to meet the burden of production is very, very low. The defendant’s utterance of the words “self-defense” on the 911 call all by itself is usually enough. The evidence need not even come from the defense–it might come from witnesses, or simply from the observable evidence at the scene. But there must be SOMETHING that suggests self-defense. If there is NOTHING, the defendant will not be entitled to a jury instruction on self-defense, and may not even be able to have the words self-defense spoken at trial.
The reason Michael Dunn took the stand was NOT, I assure you, because his lawyer thought he’d be just an awesome witness. It was because unless Dunn took the stand and said the words “self-defense,” there was NOTHING in the evidence–zero, zip, zilch–to support a self-defense instruction to the jury (Dunn’s defense counsel DID argue self-defense in his opening statement, but an opening statement is NOT evidence). If Dunn hadn’t testified it is very unlikely the jury would have been instructed on self-defense at all.
And where would that leave a lawful defender? Usually, in lawful self-defense shootings its not all that hard to figure out that the defender shot the “victim” (what the law calls the frightened/wounded/killed attacker). Given that, it’s an easy conviction for the State unless self-defense can be raised. So defense meeting its burden of production is obviously very important.
Once the defendant’s burden of production has been met self-defense becomes a legitimate issue in the trial, and the burden of persuasion–the second half of the “burden of proof”–shifts to the State to disprove self-defense beyond a reasonable doubt–exactly as they have to prove each and every element of the crime charged beyond a reasonable doubt. In effect, self-defense effectively becomes an “element’ of the crime.
That doesn’t mean that the defense SHOULDN’T introduce further evidence supporting self-defense–they should introduce all they have, you want your narrative of innocence to be as robust as possible–but only that it takes only a small amount of evidence of self-defense to shift the burden to the State to disprove self-defense.
It may seem a heavy burden on the State to have to disprove something, but trust me, it’s not as hard as it sounds–and usually it’s not as hard as it sounds because the defendant “did it wrong,” and caused a self-inflicted mortal wound to his own self-defense claim. It only takes one mistake, and self-defense is–poof!–gone.
So, I advise folks to know how to “do it right,” be aware of the pitfalls that lead folks to “do it wrong,” minimize your perceived vulnerability to prosecution, and make sure your personal self-defense strategy is both tactically and legally sound.
Or not. 🙂 Everybody’s personal choice, right?
–Andrew, @LawSelfDefense
Thanks for the clarifications, Andrew.
JR, you’re a bit off on manslaughter. Manslaughter also requires mens rea, or some sort of intent. It is not sufficient to have simply killed someone. You have to have intended to kill them or intended to commit some act that any reasonable person would expect could result in a death. That is, simply bumping into someone on a crowded sidewalk and causing them to trip and fall right when a truck drives by and kills them is not likely to be manslaughter. It’s an accident.
To Skyler:
Learn what manslaughter is.
Also what “accident” is in terms of a legal defense.
99.9% of cases where one person kills another are manslaughter by default (or a higher offense, like second or first degree murder).
Accident is a perfectly legitimate defense to a charge of manslaughter or murder, but it IS a defense.
And, by the way, if you claim “accident,” you’re generally throwing away the option of claiming “self-defense.” Self-defense is by definition a deliberate act. An accident is, well, an accident. Not deliberate.
So it best really, really be an accident–meaning absolutely no fault of your own, even in the slightest measure.
Good luck.
–Andrew, @LawSelfDefense
Thanks for a good article. Yes, these are differences in re the laws and people you will be dealing with in each jurisdiction. There are, no doubt, cops and D.A.’s who would prefer to arrest first and ask questions later. However, on a nationwide basis, the vast majority of police officers and district attorneys just want to discover if the DGU was justified and, if so, move on to the next file. If you doubt that assertion, consult “The Armed Citizen” page of each issue of “American Rifleman” magazine. These are actual justified DGU situations, there are usually about a half dozen of them per issue, and they are only the tip of the iceberg.
Get advice from “American Rifleman”? The same publication that extolled the virtues of NFA34, GCA68, the Brady background check system, gun-free school zones, the DISCLOSE act, and of course the dangers of exempting firearms records from the Patriot Act renewal?
Where do I sign up?
The column does not provide advice, it provides accounts of justifiable DGU.
Nice. Concise and simple. Sgt. Hayes points out that police fully expect you go defer to your lawyer after the pertinent details are passed on. That doesn’t surprise me, much. A cop will wait for you to run your mouth and when you don’t, he’ll understand that he’s not dealing with a fool. After that, you just have to contend with that weird period of silence while waiting for your attorney to show up.
Keep in mind every police department does things differently from the other, so what works in this officer’s department may backfife and give the DA more to use against you in another jurisdiction. This officer can only speak what is good within his own jurisdiction. In another jurisdiction just giving the basics without a lawyer may make the DA’s job of putting you in prison alot easier. Police are the last people to seek legal advice from since they are allowed to lie and trick you into confessing, and they can get away with forcing one out of you too. Giving the basics as the author suggests is also admissible in court and will be used against. Every last word you say will be used against you so you must be careful. The police are only allowed to testify to prove your guilt. They are not allowed to testify to prove your innocence because it would be automatic hearsay.
“What the offender (the one who was shot ) did: “The man came to my door with a gun. He kicked my door in.”
DA’s version, The victim opened the door and was senselessly gunned down by the defendant who admitted it to the responding officers.
What you (the shooter) did: “I feared for my life. I had no choice. I fired my gun and the man stopped attacking me.”
DA’s version, The shooter admits to killing the victim. He/she claims to have had no choice despite the many avenues of escape or calling the police for help.
” What evidence exists: Your gun, his gun, your door.”
DA’s version, This evidenence proves the defendant murdered the victim. The victim drew his gun to defend himself/herself from the defendant.
“Who witnessed these events, if anyone”
Witnesses are well known for being very unreliable and giving contradicting statements about what they saw. That is each witness has a different story because everyone will remember things differently. It has been well studied and documented and law enforcement knows full well about this. However the DA uses this to his/her advantage by making it look like you are lying if you and the witness’s account don’t line up 100%, even through it is normal and should be expected to some degree. There is also the risk of a false witness just lying for whatever reasons against you (grudge, anti-gun, crazy, friend of the attacker, etc).
Every word you say to the police make’s the DA’s job of throwing your butt in prison that much easier.
I did mention the absolute need for a lawyer. That in itself is sad, in my opinion. I would personally have no problem waiting for a lawyer. I know, based on experience, what that lawyer will say.
More likey than going to trial, the DA and your lawyer will sit down at lunch and just plea deal. It isn’t like on TV where they fight each other tooth and nail. The DA will offer the “going rate” and your lawyer will tell you just take it so it is all settled out of court.
In NJ, the DAs have orders to prosecute all cases involving firearms. So no matter how you behave or how much in the right you are, the DA will push charges. Even if the DA doesn’t have that strong of a case, you will probably still be forced to accept a plea deal of some kind even with a lawyer.
It’s sad that anyone has to live with that persecution. Self defense is a natural right. Maybe NJ forgot that.
“The police are only allowed to testify to prove your guilt. They are not allowed to testify to prove your innocence because it would be automatic hearsay.”
Hahahahahahahahahaha! 🙂
That’s awesome.
You couldn’t possibly be more wrong if that was your sole mission on this earth.
But thanks for the laugh.
–Andrew, @LawSelfDefense
Correct…I have testified for the DEFENSE a number of times……
As have I.
This is pretty good comedy but not based in much reality. Not sure what state you live in, but in TX if someone enters your house without permission, you have the lawful option to use force. If that person is armed, that force becomes lethal force. You do not have to wait for them to draw first (that would be stupid). Actually I have the option to still shoot them if they are still on my property but in the process of escaping (you don’t know if the threat may return, do you?). It is also your property and have every right to be there so you do not have to retreat, nor should you be expected to.
Have watched the lecture “Never talk to the police”
http://www.youtube.com/watch?v=6wXkI4t7nuc
One thing I took away was how what you say gets “remembered” by police and the DA. Take the “I feared for my life so I shot him.” This can become “The defendent confessed he shot the victim.” Having a lawyer, tape recorder etc. in the room does reduce the chance of this.
You just described how the police can make an error by omission. In other words the police can omit something that you said. What they omit could be an honest mistake or a malicious mistake.
Don’t forget that the police can also make an error of commission. In other words the police can claim you said something that you did not say at all. And that could also be an honest mistake or malicious.
However, if you say absolutely nothing, it becomes much more difficult for police to claim what you said if you did not say anything at all. The only down side to this: if police are willing to lie and claim that you said something other than what you really said, they are probably willing to lie and claim that you stated something when you never said anything at all.
I don’t see any good answer to this, one way or another.
I think where you are makes 100% difference. In PA I was given huge citations for a minor traffic incident ( made a left out of a lot. Never saw the sign. ) I gave my carry permit to the cop & told him the models of my guns. Respect to him. He ran me in that day and was p.o.’d that the cat nip was not a drug.
I am now in north central Fl. I needed a vin verification. A Leo came to do so. Long and short. He told me what his recommended caliber would be for a woman. (Nothing below 380) and gave specific answers to me regarding the law here in Clay county Fl. He also said that the recommended caliber would be sufficient to kill if need be (& shoot to kill because of adrenaline rush of purp.)
Of course I hope NEVER to need to shoot anyone. But as a single woman who is in the deep woods I feel the need to be armed. My LEO actually encouraged me to be armed to be safe. Responsible of course & to defend myself if I fear for my life.
Again I hope that I never have just cause to shoot anything other than target. But my LEO stands behind the right to bear arms!
If you make the statement on the post shooting 911 call it will be recorded exactly as you said it. I Agree 100% …consult an experienced criminal defense attorney in your jurisdiction in advance and ask for his advice on what how and when to say the rest. Way too much well meant but wrong advice given online.
Why would your first statement ever be “I was in fear of my life so I shot him”? Remember, you’re talking to the cops, YOU didn’t do anything. “I was in fear of my life and he/she/them got shot”… No admission that you did anything that could come back later to haunt you. let them do ballistic testing if needed to determine that it was your gun that created new holes in a person, don’t tell them it was you.
And by the way, at least in AZ, the burden of proof that it was self defense is not on you. It’s on the state to prove that it wasn’t.
Good points Matt.
And it is critical to note that some states still require the prosecutor to establish guilt even in many self-defense cases. That would be states with “stand your ground” and Castle Doctrine laws with language about a rebuttable presumption of fear, legal use of force, etc. in certain self-defense cases.
It is not a good point. Cops and juries don’t trust people who talk like that, and it’s going to be easily provable. You want both to believe you, so don’t screw around in such a useless fashion.
Your comment is incomprehensible. The Castle Doctrine establishes a presumption affecting the burden of proof that the shooter in specified circumstances (inside their own home) is PRESUMED to have been acting in lawful self defense, and thus the prosecutor must prove beyond a reasonable doubt that the shooter was NOT acting in self-defense. A defendant doesn’t have to prove a thing until the prosecutor establishes this proof.
Concrete example (under California law which has no castle doctrine statute but applies the concept as a matter of law): someone kicks in my door, breaks a window, whatever, even enters an unlocked door uninvited. Simply by the act of his breaking and entering, it is PRESUMED that the intruder intended to do me serious bodily injury or death; in other words, my “reasonable fear of imminent serious bodily injury or death” is established as a matter of law whether or not I utter a single word. If there is a prosecution, the jury will be so instructed.
There are of course circumstances that will make application of the presumption dicey, e.g., shooting a family member, shooting an escaping bandit in the back, executing a person whom you have detained at the point of a gun stuff like that.
The “Castle Doctrine” and “presumptions of reasonable fear” are two distinct self-defense law concepts. Just because many states combine them in a single statute doesn’t make them the same thing.
Every state has some form of the Castle Doctrine–which deals SOLELY with any duty to retreat prior to the use of force in self-defense in the context of the home.
NOT every state has a presumption of reasonable fear with respect to the home. Indeed, many of these states expand the presumption of reasonable fear beyond the home to include temporary dwellings, places of business, even occupied vehicles–but many others do not do so.
It’s like cream and sugar. Lots of people put both in their coffee, they are still different things.
Obfuscating distinct legal concepts like Castle Doctrine, presumptions of reasonableness, Stand-Your-Ground, self-defense immunity, and other self-defense law concepts only complicates discussion, analysis, and understanding.
–Andrew, @LawSelfDefense
As the lawyers on here can confirm. Self defense is an affirmative defense. You have to claim it. The State has a dead body. They know YOU shot him. Whether or not you claim self defense, the police will still fully process the scene. Forensics will most certainly put you as the shooter. Your lawyer wouldnt be worth a dime if he didnt use self defense. The State has their case. A homicide and the person who did it based on forensic evidence. That is all they need. They have no need nor do they have a responsibility to prove a self defense claim that has not been made.
I have seen some relplies that seem to claim all cops are crooked and want to frame people. Nothing could be farther from the truth.
I would certainly keep it to the basics. I have actually had to stop folks who had just shot someone from talking too much. This debate is great but in the real world I have never had a DGU shooter “Lawyer Up” right away.
I keep my lawyers work, home & cell numbers in my phone. He is availabe 24/7. If you do that you can actually get your lawyers advice BEFORE the cops get there. He can speak for you.
In the street, yes. In the home, it depends on whether your state of residence has some form of castle doctrine that shifts the burden of proof to the prosecutor to disprove self-defense, if castle doctrine (or SYG) applies, the police will have to find evidence that disproves this defense.
Where do you people come from?
The Castle Doctrine has absolutely NOTHING to do with shifting the burden of proof to the State. Nothing. The Castle Doctrine deals solely with the issue of the duty of retreat in the home.
Many States also have presumptions of reasonable fear in the context of the home (and sometimes additional places), but this is an entirely distinct legal concept from the Castle Doctrine–and in any case, the State ALREADY has the burden of disproving your self-defense beyond a reasonable doubt (except in Ohio), and thus this presumption of reasonable fear actually mean very little in a legal sense (except in Ohio), although they arguably make an important policy statement.
I swear, sometimes these threads can’t help but remind me of Reagan’s quote about liberals–here replace with “blog-comment lawyers”:
“The trouble with our Liberal friends is not that they’re ignorant; it’s just that they know so much that isn’t so.”
–Andrew, @LawSelfDefense
I have actually had to stop folks who had just shot someone from talking too much.
I’ve got to tip my hat to peace officers such as yourself. I was involved in a self-defense-ish situation some years back but it didn’t involve the use of a firearm (I was armed but it wasn’t a factor). By the time that the officer arrived, I was 1000′ away from the ‘scene’, had nothing but my cane (needed one to walk at the time) and my identification. Long story short, he put me in the patrol car (apologizing for having to take me in as he knew the complaint was utter rubbish), read the miranda card, and then told me that I wasn’t going to say a single word. He spoke about the newest IR tech that the local sheriff’s department had installed on the county airplane. I couldn’t have gotten a word in if I wanted to. The case was dismissed and sealed. I’m often proud of our local peace officers and I was especially impressed with his performance that day. Thumbs up to guys and gals like you… we need many more!
PS thanks agin Robt for the article from the Sgt. To him and other real LEOs willing to share their experiences and advice here: RESPECT and deep appreciation for your service. My experience with street cops and Sheriff Deputies is the majority are pro armed citizens for 2A self defense. And thats in So Cal.
As always my $ .02 and YMMV.
Thank you Sir!
Where would George Zimmerman be if he followed the STFU advice? He would have been convicted of Second Degree Murder. All the LEOs who were called as witnesses by the prosecution effectively testified for the defense. Does anybody think that would have been the case had George followed the STFU rule?
I think those who generalize STFU usually come from anti-gun states in the Northeast or places like Chicago. If you want to carry a gun learn the law for your jurisdiction and check what it is where you are going when you travel. If you have a chance talk to a local LEO, and if possible, someone from prosecutors office do so. Knowing your rules of engagement will help keep you out of jail.
All this pre supposes honest cops, honest DAs, and no politics hovering in the background. KNOCK KNOCK hello, its REALITY calling.
Ask GZIMMERMAN how the whole “be honest and explain what happened to the cops” thing worked out. A couple weeks later after Al Sharpton and Obama decided he needed to hang it was off to the races with murder charges.
Wake up people, the cops are never your friends.
It worked out by getting him found not guilty. Learn the facts.
Umm, he never should have been charged in the first place based on the original post. Duh. Do whatever you like, I could care less. Everyman for himself in this jungle.
The cops actually said it was obviously self defense. It was when the politicians got involved that things went South.
Thought I would provide the info I received from my Attorney (also a personal friend so we chat about such things at lunch often) who is licensed in several states and has successfully defended a number of DGU cases.
1. Have someone else call 911 if there are others in the area, as you will not have said a word about the incident on the record.
2. While the other person is calling 911, I will be calling my attorney. When the police arrive, and begin to ask questions, I have been instructed to tell them that my attorney is on the phone and I have been asked to hand them the phone.
3. Don’t EVER say you shot someone. Evidence gets lost, so if your gun can’t be produced, the DA will have to prove that you actually had a gun and used it. Without your statement or the gun, the DA’s job just got harder.
4. If I have to call 911, simply advise that there has been a shooting at ____ location and request an ambulance and hang up the phone. I promise, the police will come as well. Don’t give you name or any details, as that puts you on the record.
5. If your attorney is not available, identify the bad guy, his weapon, the witnesses and politely indicate you will provide a full statement with your attorney. Witness statements at the scene will provide information as to DGU.
Yup, you might spend the night in jail, which is much preferred to a lifetime because you started talking and the police drew conclusions first and looked for evidence to support those conclusions. Let’s face it, you are the initial Suspect, so they will start drawing conclusions based upon that fact. I just don’t want to be providing the nails in my own coffin.
As others have noted, in a police shooting, there is a cooling off period before questions are asked of the officer involved, and all questions will involve an attorney. Shouldn’t the a citizen have the benefit of the same treatment?
And if you’ve just shot someone, your plans for the next day at work are ruined anyway. Better to have your lawyer do the talking.
And your lawyer is going to make a LOT of money defending you following that advice than if you weren’t charged at all. Great source.
Note that all of that info is good advice if you’re guilty of something.
That’s what I was thinking.
Depending where you live, you are already de facto guilty. Nothing you say or do will change a cop’s mind if he wants to arrest you. In some areas DAs have orders to always prosecute any case with firearms no matter what. Every word you say to the police will be used against you.
Most likely rather than go to trial the DA will just offer a plea deal and your lawyer will just tell you to take it. It is like with lawsuits, it’s just quicker and easier to settle out of court. It isn’t like on TV shows where the lawyers and DAs battle it out, in reality they bargin over lunch like a business deal. To them, people’s lives are just business. Lawyers and DAs are business partners, not bitter adversaries.
Hannibal, you’ve stated that twice, as to the lawyer and the “if you’re guilty.” I don’t agree. First, the profession doesn’t make a lot of money successfully helping the shooter assert the self-defense and other claims a day later, at the jail if necessary. If it goes to trial the fees can be enormous, but so is the time needed to prepare and carry forward the defense.
Not speaking at the scene in the immediate aftermath is no indication of guilt whatever. You should know that, because LEOs surely do not make such statements at the scene. I doubt you think that implies guilt.
Hannibal is, I believe, a cop, and he has a typical cop attitude that if you are not talking to him and answering his questions, you are hiding/guilty of something and need to be arrested. He is also they type of cop who just loves to have the arrestee/victim/suspect go over and over the story, revisiting all of the little irrelevant details, just so he has a way of saying later, AHA! an inconsistency! He must be lying! He wants to be the one to decide if you are guilty or not–and the lord be with you if he decides you are guilty, because he will go to the ends of the earth to prove it.
If you are going to talk top the police about a DGU, do it once, do it formally, do it while represented by an attorney. And if the question has been asked once, don’t answer it again. No one ever says the same thing exactly the same way each time, and those little “inconsistencies” can and will be used against you. There is a recording of what you said before, so if the police really need to know, they can look it up.
Hey, Mark N., what about evidence and witnesses on the scene, you’re not going to point those out to responding officers?
You’re just going to say, “No, no, nothing from me until I talk to ‘my attorney,'” whoever that might be–the guy who did your house closing, or you have enough involvement in the criminal justice system to warrant an ongoing relationship with a criminal defense attorney?–which in any case won’t be until the next day or the day after, by which time the evidence and witnesses are long gone.
Great plan.
–Andrew, @LawSelfDefense
Something to keep in the back of your mind is that each state, each county, (Parrish), and each city is likely to be different.
The AI here will likely know these differences.
Pro versus anti gun. Red versus blue, etc.
Probable cause meant a lot to me. As did seeking the truth.
I, and others in my department would never just arrest someone because they said nothing. There must be evidence to support an event.
Here, a potential felony will almost always be reviewed by a grand jury. They will decide whether or not to cause a warrant to be issued.
This is a good thing. If no true bill is determined, the DA normally won’t go against a grand jury and issue a warrant.
Hopefully you know whether or not to have faith in your local law enforcement.
Unsure? Have your local gun club invite them to give a short presentation on the subject. Have a Q and A session.
It is pretty simple, while you, your sig other, your kid, or the neighbor is on the phone with 9/11, you or your sig other should be on another phone line with a lawyer.
Don’t talk to cops.
http://www.you tube.com/watch?v=6wXkI4t7nuc
take the space out between you and tube if you want to watch it.
Just taking the “http://” off the address keeps it from embedding, if that’s what you were going for.
“It is pretty simple, while you, your sig other, your kid, or the neighbor is on the phone with 9/11, you or your sig other should be on another phone line with a lawyer.”
You literally have a criminal defense attorney with current expertise in trying “good guy” self-defense cases on speed dial?
Sorry, I call bullshit. Not that many of those cases, not that many attorneys current in them.
–Andrew, @LawSelfDefense
The one time I shot someone, it was a home invader with a knife and my weapon was a crossbow.
The bolt hit him with sufficient force to knock him down and the tip protruded an inch or so in back.
There was very little bleeding of course, which is likely why the sh¡t didn’t die, but this was unquestionably [potentially] lethal force.
This was in California, but a crossbow is not a firearm and the coppers were most cordial about it. No charges were filed, although the weapon was taken in evidence and not returned ’til the DA gave a thumbs up.
I’ve always wondered how things would’ve gone had I thrown 3/4″ of lead rather than 14″ of steel?
In California, pretty much the same, as you were presumed to have been acting in lawful self-defense.Bad guy with a knife breaking into a home is a dead bang winner for the defense.
Indeed, and California as a damned fine castle doctrine.
I’m just thinking that it might have gone a tidge further before being shrugged off. Citation or arrest, talking to the DA before I could see the sun, that sort of thing.
I think there are some important points being glossed over. I’m sure this police officer, by the very fact that he’s bothering to post here, is an honorable man.
But some are not. And even if the cop is honorable, the prosecutor may not be.
If you live in a well to do or middle income neighborhood with low crime rates, then you might be okay chit chatting with the friendly police officer.
But if you live in a bad neighborhood and have tattoos on your face and neck and don’t bathe regularly, the police officer is less likely to believe your story.
I think the general rule should always be to never speak to the cops, because the odds of you finding that honorable cop are pretty low in some jurisdictions.
Thank you for submitting that good information. What you’ve outlined is basically what my plan has been and that which I’ve advised others to consider.
if you use a firearm in self defense, the burden of proof is on you.
This is something that needs to be corrected… even in the more pro-RKBA/self-defense states. It should be the other way around.
You’re going to have to tell the cops something, but keep it short (“he attacked me and I had to defend my life”). The evidence at the scene will often speak for itself. Ask to be transported to a hospital. Get your wounds documented. No wounds? Get your heart checked. It’s probably pounding out of your chest. You could have suffered a heart attack and not know it until you drop dead. You can call your lawyer from the ambulance if you haven’t done so already.
Good call. Especially for some of us older types.
It would be a real bummer to survive a DGU, and then croak from a heart attack.
Finally, some one offers a positive example of an ambulance-chasing attorney!
If everyone in law enforcement was like this cop, we probably wouldn’t worry too much about this because the truth would come out, fairness and logic would prevail, and justice would get done. However, in the real world, it’s not like this. Anything you say can and will be twisted and distorted and used against you. Sorry, but I just do not trust law enforcement or the legal system.
Having said this, I think we’re in violent agreement that you should say only that you feared for your life and that a person has been shot, and that before you say anything else yo want to talk to an attorney.
The advice in the article applies very locally and maybe to his office. Nationally this is highly unlikely. Getting lawyered up annoys the system but forces them to investigate rather than just hand incriminating statements to the DA.
Don’t ever forget who the cops work for and what they do.
Fortunately, I’ve never had to deal with a DGU.
I have had an unfortunate experience with the Feds, however. I childhood friend did some bad things, for which he eventually did 20-24 months. As it was white collar, it was presumed he had a co-conspirator, and the circumstances pointed in my direction.
The day I got a call from the investigating AUSA, a huge gap in my schedule unexpectedly opened up that afternoon. When he asked me to come down and answer some questions, I offered to come in that day.
It never occurred to me that they were “looking” at me. Had I had time to think about it, I would have lawyered-up (I’m an attorney, and that is the second thing they teach you in law school). So, due to a fluke in my schedule, I went in, without counsel, and endured an old-school, good cop/bad cop, 3 hour ordeal.
Ultimately, my friend went “to school”, and the feds left me alone. A couple years later, my path crossed again with the AUSA. We recounted what had happened, and with the benefit of hindsight, i had come to realize at the time they considered me a likely co-conspirator. I asked him when he had come to the realization I had nothing to do with it. He responded “the minute you offered to come in right away, without counsel. We knew you were a lawyer, and figured at that point you were either innocent, or brain-damaged.”
This is a long way around saying the LE community has a ton of discretion to make your life miserable. There may be some bad ones out there, but sometimes you gotta take a leap of faith. In most instances, I’ll chose to put that faith in the hands of the LEO.
Tucker Max correctly pointed out: “Cops, even the asshole High School Napoleons, aren’t interested in wasting their time jacking up innocent Citizens. If you are truly innocent, just lay everything out and be straight with them, and they’ll move on to the Criminals.”
High school Napoleons……Love it!
Never talk to the police unless you have an attorney present.. This is as basic as washing your hands after taking a shit….
Lawyers say don’t talk, police say talk…
I’m trusting the one who gets paid from keeping me out of jail, not the one that likely couldn’t careless either way and gets paid regardless.
You mean the one that gets paid more if you go to jail? 🙂
I had a conversation with an LCSO (western NoVA) deputy about this after seeing the previous article and got the best advice I’ve heard about this. After echoing the author almost point-by-point, ‘This is my opinion–talk to the attorney whose card you carry in your wallet get his, and write it down. He’s the person your butt is going to depend on if you are ever in that situation for real. If you carry and don’t have a card like that, GET ONE.’
Thank you, Sgt. Hayes.
It always gets to me when I hear the phrase “call your attorney” It’s hardly ever that I see “call your attorney, if you have one”
Don’t these advise givers realize that not everyone can afford to have an attorney on call! Some of us have to go it alone, and my eventually end up with a court appointed attorney.
Most people are in the middle, which is pretty bad too. Not enough money to “have a lawyer” but not so little that you get a court appointed one.
You state a very real problem. I have one because , as a police officer, i am more likely to get involved in a shooting. The State won’t give you an attorney unless you are charged. Its not the best advice, but give the basics and still defer until you talk to an attorney. At least talk to an attorney. They will likely give you some guidence for free.
I know more then a few people who say the same thing when someone says “see your doctor”
Thats where planning comes in.. Most lawyers will give a free consultation.. set up a time with a Lawyer and ask a few questions concerning state and federal gun laws, and whatever else you may want to know… If you like him. get a card.. If you ever need him, you will at least be dealing with someone familiar
Another perspective: In many, probably most, situations the good guy has no criminal record while the bad guy is generally not on the local church’s ice cream social committee. In fact, the bad guy is probably a heavily tattooed violent moron who is easily identifiable as such. He is probably despised by the police, the D.A., and, if the truth be told, his previous public defenders. The law enforcement authorities will follow the same procedures they do at any crime scene, but many of them are thinking: “I wish I could buy the DGU shooter a steak dinner.”
Unlike most (all?) posting on this subject, I actually hired a lawyer and paid him money to discuss what to do should I require his services after a DGU. I showed him my USCCA card (I’m no longer a member) that had the “I was in fear for my life and was forced to defend myself…” advice quoted here and offered by the author of this post. My attorney disagrees with this advice and gave me many good reasons why. It was worth the price to be in-sync with the attorney beforehand, even though I will likely never need the defense.
Everyone who can should do the same–find an attorney in your area who knows the local laws and local environment. Don’t merely take the free advice from the internet, even from well-meaning cops. You get what you pay for.
Suggest to Deputy Friendly that he needs to get his boss Sheriff Bob out of bed and you’ll do your talking with him (and give time for you attorney to arrive). You do know Sheriff Bob by his first name don’t you?
May vary by state. Where, by statute, does the “state” have a legal right to seize your firearm after DGU?
If you’re in a DGU you need to try and recognize that you have been traumatized and are in need of immediate medical care. You do not talk with the police about the incident unless to inform them of some life threatening circumstance that still exists. You next speak with an Attorney, but realize that the trauma you have suffered may have distorted your perceptions and your memory of events might change significantly within 24 or 72 hours after the event.
Wow! This is the same thing Massad Ayoob, Rob Pincus and Michael Janich say. Wow isn’t that interesting! All three of these men have been on shows promoting the knowledge of self defense in the practical and legal areas.
Disregard this ENTIRE article and go speak with a qualified attorney to determine how you should conduct yourself following a DGU! This article is filled with horrible advice from someone who does not have your interest at heart. A few precious tidbits of his B.S. below:
“This is important…if the facts indicate a lawful gun use, NO crime has been committed and NO probable cause to arrest exists. For this to occur the shooter has to provide certain facts to the police.”
B.S. The law isn’t science. Facts exist, but so do lies, hedges, prejudices, opinions, and interpretations. A different detective, prosecutor, judge, or jury could look at the same “facts” and come to a different conclusion. Not only is nothing that the shooter tells police regarded as fact, even if 100% true, it’s not even admissible in your defense because it’s hearsay. It can only be used against you (that’s why it’s in your Miranda warnings) to impeach your credibility.
Ultimately, it’s the prosecution’s responsibility to prove both that a crime has been committed and that you committed it, as well as to overcome any legal defense (justification, necessity, etc.) you may present, but which you are not obligated to present. It’s NOT your job as the shooter to explain anything to the police and overcome any default presumption that you’re guilty of a crime. It’s the exact opposite, which is what presumption of innocence means. Tell your story to your lawyer and let him/her talk to the police. Your lawyer is your legal buffer zone.
“If you don’t answer some basic questions or give some basic information, you are part of a homicide investigation, not a defensive gun use.”
B.S. You’re ALREADY part of a homicide investigation the instant someone died at your hands. That’s the very definition of “homicide.” That why they their title is “Homicide Detective”, not “Let’s-Go-Take-a-Look-Ask-Some-Questions-and-Figure-Out-What-Kind-of-Investigation-This-Whole-Dead-Guy-Killed-by-Someone-Else-Situation-Might-Be Detective.” What this cop is saying is that unless you forfeit your rights, particularly 4th through 7th amendments, they’re going to assume you’re guilty and do their level best to railroad you. Anyone with that posture is going to try to do that, anyway, so don’t make their illegal job easier by waiving your rights.
“The point is: if you use a firearm in self defense, the burden of proof is on you. The state simply has to prove you shot somebody. You have to show it was lawful self defense.”
B.S. The simple fact of you having shot somebody isn’t sufficient for a conviction. The State has to prove a culpable mental state. In Texas, there are four culpable mental states (intentional, knowing, reckless, and criminal negligence) and they correspond, with some overlap, to the severity of the homicide crime (capital murder, murder, manslaughter, or criminally negligent homicide.)
I could go on with this, but what I’ve written here should be sufficient to sway you to seek independent, qualified legal advise and not to rely on this cop, this agent of the state, to tell you what you should do.
+1
Okay, but my lawyer said to do basically what he said. The police need certain stuff to go on. What if the guy ran because you missed, or didn’t get an instant drop? What if while he ran away he tossed the gun/knife/crowbar? If you don’t tell them a bare minimum, then they won’t know to look for a gun. And they might not find it when your lawyer shows up hours later and you finally get around to telling them he had a gun.
Basically keep it short and sweet. Tell 911 you “feared for your life and had to defend yourself.” Tell the cops, “He pulled a gun, I pulled mine and shot, he ran. He was 6 foot-ish, white, with a beard, black jacket and jeans. I want my lawyer.” And then STFU.
It sounds like you need to contact a lawyer and get his advice as well. Any lawyer worth his stuff will tell you what I just said. But they will tell you to try and contact them first before the police show up. And if you get in touch with them, they will tell you word for word what to say. And if the guy is dead with the gun still in his hand and the front door kicked in, well your lawyer’s advice might well be to simply say “I already contacted my lawyer, he is on the way to the station and I will make a statement there.”
Well, you come close to being correct then you fudge the whole thing up by calling their “job illegal”. Lets get it right, their job is entirely legal justified and important but you don’t have to give up your constitutional rights to aid with their inquiry. Law enforcement personnel have a very important job to do immediately following an act of violence and we have agreed as a society that they should do it. You as a citizen can protect your rights if you so choose but to call the job of the police illegal when investigating a potential crime of violence is just plain stupid. How would you like an investigation of a potential crime of violence against a member of your family to be handled?
I may have been too cute by half then. It’s the railroading of a suspect, the pressuring of suspects under stress and fear to waive unwittingly their rights, and the shortcut taking police are known for with regard to evidence collection (which is often found illegal and rendered inadmissible) that I refer to as illegal job. I don’t regard investigation of homicides itself to be illegal. That itself is a perfectly appropriate law enforcement function.
Hell, I’m often the one demanding even more investigation and submission of these cases to the grand jury for further review.
Note to newcomers to guns – Unless you work third shift at a Chicago liquor store or are employed in some similarly dangerous occupation, you are highly unlikely to ever be involved in a DGU. Also, unless you live in Leftistville, you are more likely to be injured by a flying mastodon bone than you are to be improperly arrested and prosecuted for a justifiable DGU.
If you want to worry about something, fret about your inability to quit smoking, your lack of exercise, drivers who text, and all the other things that are far more likely to cause you temporal harm.
Tell that to Mr. Petit.
Every year in US:
250,000 rapes
750,000 aggravated assaults
Very few of them were liquor store owners or people in particularly dangerous professions.
If a deadly force attack happens to you, the probability is suddenly 100%.
As the good guys, we don’t get to pick the time and place in which we’ll be compelled to act in lawful self-defense.
Best not to pretend that unless we’re a liquor store employee or work in some dangerous profession that we’re immune to murder, disabling aggravated assault, or rape.
Because if the flag flies, the unicorn is unlikely to charge to your rescue.
Just my two cents.
–Andrew, @LawSelfDefense
We live in a country of over 300,000,000 people. Do the math. The point is that DGU is a rare event and that improper prosecution of a justifiable DGU is an even rarer event.
“We live in a country of over 300,000,000 people. Do the math. ”
So, your position is why bother protecting ourselves against low probability events? Wow.
You wear a seatbelt? Carry a gun for personal protection? Have fire insurance on your home? A fire extinguisher in your kitchen? Smoke detectors in your home?
It’s always a “rare event” until it happens to you.
The prudent amongst us prepare ourselves.
Feel free to do as you think best for yourself and your own family.
–Andrew, @LawSelfDefense
In my experience, an investigating officer would like to get all the facts and evidence in a nice package to forward to the DA as soon as he can. He doesnt like loose ends or incomplete portions of the case, as those thing can come back and be his problem.
Unless he has some reason to like or dislike you compared to the others involved, I wouldnt expect him to go out of his way to make you look bad. On the other hand, you might want to point out facts for him to include that support your DGU assertion. If you dont at the incident, it may become a loose end that may or may not be collected later.
If you are booked into jail, you will be asked as to your medical needs. make sure they are fully advised of your specific needs, since they dont know your needs. The jail will send you to the hospital if they are not satisfied you are healthy enough to be housed, not because they are looking out for you, but because failure to care for a prisoner is low hanging fruit for a lawsuit.
I like what he said about the state, good thing he was in Georgia and not New York. I am a CWP instructor in SC. I had a prosecuting attorney take my class once and said the last four times a DGU case came before his office and the state was compelled to prosecute, the jury acquitted all four times. More than likely the victim violated some technicality that would have nailed him in a different state. No wonder sanity is leaving the northeast in droves.
It is truly sad that “where” matters in this country, but I felt compelled to include that. I know the truth. Many liberal states persecute gun owners and the authorities will not even consider a straight up DGU.
It’s not that talking to the police will hurt your case, it just wont make any difference. In liberal states a trial is likely no matter what.
I find it quite interesting that those with experience with homicide investigations and self defense cases in court are in general agreement with the article, and those with no experience one way or another are the ones saying STFU and say nothing.
Am I wrong about that? Anyone above saying “the article is wrong” or actually been party to an investigation?
The term “geezer science” comes to mind…
JR,
I (The author) have been writing on pro gun issues for 20 years ( as long as I have been a cop). I recently started writing as a cop, from that point of view. I have learned that whenever some people, who may be OK otherwise hear the words “Police” or “cop” automatically attack whatever is said. I am used to it. I hope the rest understand what I was trying to say.
Patrick, I think you’ll find that “what to say to the police afterwards” is the most treacherous area you can address in these kinds of forums.
The simple truth is that even to contemplate the matter is so horrifying, many people are susceptible to oversimplified solutions–“Say NUTHIN’ without your lawyer!”. And for some people, especially those tending towards logorrhea, that’s probably the best approach.
That does not, of course, mean that it’s the optimal approach. It’s just the “best approach” for people who feel they can’t make use of the best approach.
Haha, and once they realize there’s THAT subtext to the discussion, the hate really comes out.
Anyway, mostly agree with you, and the variances merely reflect our different perspectives and responsibilities (I’m a lawyer, not a cop). Thought you did a solid job for the most part.
Only substantive area of disagreement with you is the presumption that the “evidence” will “prove” whether the shoot was legitimate self-defense or not. Plenty of guilty people get acquitted, plenty of people go to jail based on a skilled prosecutor’s rhetoric rather than actual evidence (note that I don’t call them “innocent people”).
The “evidence” is merely building blocks for both sides, prosecution and defense, to build their opposing compelling arguments of guilt and innocence. It’s not a magical “truth”–because none of the decision makers knows the “truth”–none of them were there–and, indeed, sometimes not even the parties involved know the “truth”.
–Andrew, @LawSelfDefense
I also want to thank you for sharing your knowledge and experience on the subject.
I am often accused elsewhere of being “anti-cop” and even I understood what you were trying to express. Thank you, sir, for sharing your insight.
The author is correct in noting that WHERE the DGU occurs makes a difference. Fortunately in Georgia it appears that the rights of the involved are still respected and no one is pre-judged solely because a gun was involved. Unfortunately for those of us in states such as Maryland (as well as NY, NJ, Washington, DC and other jurisdictions), no such respect is shown. The shooter, regardless of circumstances, will be arrested and charged with an offense. The shooter will be burdened with the expense of an attorney and the need to prove INNOCENCE to the state because the state assumes guilt. The newspapers will sensationalize the shooting incident. In those states, it’s still worth the consideration to remember that anything you say can and will be used AGAINST you.
It’s good to hear of states that respect the Constitution and all it’s citizens. It’s also good to read about constitutional LEO’s of which we need more.
Thank you Sir!
An Example:
http://bearingarms.com/teen-gunned-down-after-he-accidentally-kicked-in-door-attacked-homeowner/
Also speaking as a longtime reader of TTAG and a cop in Georgia, I’ve come across the kind of sensational reactions noted above. We’ve all been told to avoid barracks- and jailhouse-lawyers, but to my mind, that’s old school. there are a lot of internet lawyers too, and not in the sense that Andrew is one. (quick side note, all: I’ve read lots of Andrew’s stuff, and if you can, head over to his site and read some of both his articles and the discussions.) As the Allstate insurance commercial proves, everything on the internet must be true. Particularly amongst those who tend to think all cops think of themselves as imperial stormtroopers. PotG, please believe me when I say we look at them with as much suspicion, ridicule, and outright WTF as you do.
There is going to be a certain contingent of people who view all cops as some sort of nefarious, evil-doing, scheming, jack booted thugs. Just like there are lots of cops who take on the “us vs. them” mentality. Both seem to be more of the fringe element, though. Most people understand that everybody is human, and this may be familiar to anybody who’s been involved in high stress situations, be it military action, police work, auto accidents, whatever: as we get stressed, we tend to have verbal diarrhea, or we tend to shut down. No real cop worth his salt is ever going to try to pressure somebody on the verge of that collapse, and nobody seriously understands what reaction they will experience after having to fire. Sure, there are a bunch of ninjas out there who will tell you how in control they are, but then again, everyone is ten feet tall and bulletproof behind a keyboard. Lots post here. The simple reality is that some people, and this is not an insult, please understand that, mentally shut down after traumatic experiences. It’s medical fact, and it’s not a sign of weakness. It’s a sign of the brain and body’s response to an overwhelming stimulus. Some become confrontational, some become irrationally suspicious, some forget details, some remember EVERYTHING, some remember most things but for some reason can’t put names to them, and some wind up needing tin foil hats. The vast majority recover pretty quickly, and may or may not remember the police encounter in detail later.
At the onset of an investigation, there is one thing I will promise you: no matter how well reasoned you’ve thought this out, no matter how magnificently you’ve worded your interview responses, no matter how many conversations you’ve had with your attorney, it will not go terribly smoothly at first. Barring extended amounts of time for a response, there is something to be said about a guy just not acting “right” for the situation. That’s not limited to a police observation; it’s human nature. We even teach our kids to observe that in their little puzzles and pictures by having them spot the differences or the things out of one place from one picture to another. When something is so out of place as to prompt a bit of cognitive dissonance, it’s reacted upon. And here is where you will find the internet “lawyers” coming out. Since we love dissecting the Zimmerman trial, i’ll use that to make my point. Lots of the political pressure and (honestly) BS focused on the small detail changes in some of Zimmerman’s story, and they focused on it as “evidence” of his guilt and lies. However, the story was pretty consistent. It was just that the farther away from the incident he became, the more he was willing or able to relate. Simple human nature. The Sanford cops recognized it for what it was, even if the politicians and race-baiters didn’t. And anybody who is so squared away immediately after the event IS going to draw some extra scrutiny.
You cannot, with a straight face, expect anyone to believe that (God forbid) if you have to use force to defend yourself, that you will be so calm, cool, and collected as to put several well thought out “bring me my attorney” statements together. Especially if the questions being asked are of a soft nature like asking you to relay what happened here. That approach is no different than a fender bender, and you don’t hear of people lawyering up right away before beginning the two car insurance seminar. Legal realities are very different from public perception, and the OP’s point was just that. If you are putting forth the issue of self defense, be prepared to defend your defense. Simple reality there – it’s not some random jack-booted thought.
Bottom line is to just relax. Cops are people too. And I’ve never in all my years run into a situation where some cops got together to go out of the way to set John Q Public up for failure. We have neither the time nor the inclination. Apart from the simply staggering amounts of calls to respond to, even if someone was that evil (and again, I’ve not seen it) who has the time required for the paperwork? And remember that just because you’ve spoken to an attorney does not mean you’ve spoken to a good attorney or received good advice. Not all attorneys are good and not all cops are bad.
As noted before though, I can’t speak for those more liberal areas of the country.
“The point is: if you use a firearm in self defense, the burden of proof is on you. The state simply has to prove you shot somebody. You have to show it was lawful self defense.” ~Sgt. Patrick Hayes
Um, no. the state must prove that the murder was committed in a capacity that requires incarceration. The author has no concept of how the legal system works. (sad, ‘cuz he’s an LEO.) The state has the burden of proof, ALWAYS. After a DGU, sit down, shut up and get an attorney. you may spend a couple days in jail, but it’s better than saying something that can be misconstrued and spending the better part of your life being a**- raped by Bubba.
You have the right to remain silent, use it.
“After a DGU, sit down, shut up . . .”
That’s one way to go.
It’s not the best way, but it’s one way.
–Andrew, @LawSelfDefense