post self defense legal considerations

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mek42

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Given that internet forum legal advice is worth every penny paid for it, I have some questions that I'm trying to think about ahead of time and would like input on.

What is the recommended approach in talking with police after a self-defense shooting that one is a participant of? A book (I think one of Mr. Ayoob's) suggests that after a self-defense situation that one is too emotional to give a careful report to the police who arrive after the event. How do LEO's really react to an otherwise polite, compliant citizen requesting the opportunity to speak with an attorney before giving any statements?

Is it ok to call a spouse or loved one to say that you will be in need of an attorney without giving specific details over a cellular phone after the appropriate authorities have been notified but prior to their arrival?

If there is no one else around to call the authorities in the first place, is it ok to politely disengage from a 911 dispatcher prior to the authorities' arrival to call said spouse? Or should said spouse quickly be called first (this doesn't seem right to me)?

Lastly, if one has no current first aid training, is one under any sort of obligation to render assistance to those that one has successfully repelled in one's own defense?
 
1. Shut up. Say nothing, not a word. You are very excited and will talk a lot once you start talking. Because of time and space distortions you will be a very bad witness. So, shut up. If you think you are cool enough to describe the active dynamic, well, O.K., but shut up after you say "that man tried to kill me."

2. I don't care what the police think of me. The police can hate me for all I care. Do you want to be liked by the police so much that you would put your self in line for prison? (The best cops always use the buddy approach as for some reason people, even criminals, want the police to like them--"hey, you want a cigarette? Let me call your wife. Tell me what happened.").

The police exist to gather evidence against you so that the Prosecuting Attorney (Commonwealth Attorney, State's Attorney, District Attorney) can prosecute you and convict you so you can be sent to prison or the death chamber. The police do not exist to debrief the innocent. The police swim in a sea of lies. Everyone lies to them (often about really petty stupid stuff). The police will assume you are lying to them just like 99.45 % of the people they deal with. Just watch Cops sometime. That is who they see when they come to your house.

3. Accept the notion that even if you lawfully use your firearm(s) in defense of yourself or others that you are going to jail no matter how righteous you are. Right now, look in the mirror and vocalize "I am going to jail." I would rather spend a night or a week or whatever in jail than hurt my long term interests.

Is it fair? No, but expect it to happen. Yes, yes, you are a good guy. You have a CCW and a Batman cape and hood. Ahhh, but everyone tells the police it was "self-defense". *snicker, yeah, right* So, all the more reason to shut up.

Have a plan if you do go to jail (what's the line from Heist with Gene Hackman? "I've got a backup plan for tying my shoes", IIRC). 1. call trusted other, wife, brother, relative, good buddy. 2. have them call attorney and then bail bondsman (if possible).

4. Disengage for 911? No, call the cops, that's what every other reasonable juror would do. Call 911 and get the cops and an ambulance to where you are. You want 911 to record you asking for police and medical help. Here you may describe how you were in fear of your life and how he tried to kill you. Call your trusted other later, after the 911 tape (well, CD) is off.

Render first aid? No. You might make it worse. Wolves travel in packs and while you are stuffing a tampon in a bullethole, the unseen wolf may get you. BTW, the super duper MasterBlaster 2000 Handgun of Death that the Gun Shoppe Commandos sold you is a very ineffectual deathray. The bad guy may spring "back to life" and now you have a juijitsu match as you bind his wounds. As well, bloodborne pathogens are more common among the criminal class. Let the EMTs handle it. You breathe deep and get your head up, reload, and be ready to do exactly what the police say (when you shoot someone at 2:47 am, it will not be the 23 year veteran who is working that shift; it will be the 23 year old rookie and he's going to be excited).

Am I free to go? If not, don't go. No, I do not wish to go with you at this time to give a statement. Am I free to go?

Under arrest? I wish to speak with my attorney at once and I have nothing to say at this time. Am I free to go? (If so, leave. If not, name, rank, serial number and go along peacefully).
 
excellent post

Excellent post, El Tejon, to which I would only add two witty (well, he thinks they are witty) sayings one of my law partners uses to remind clients to keep the lips zipped:

1. There are far more people in prison because of something they said rather than something they did.

2. Even a fish would not get hooked if he would just keep his mouth shut!
 
Think of things you say to the police as nails anchoring your feet to the floor. Anything you say afterwards will be compared to your initial statement and questions will be asked if there are any differences. As a result, stick to the bare minimum information necessary to explain what happened. "He tried to kill me. He forced me to shoot him." There should be enough physical evidence around to show the police where the investigation is going.

The police will know why you are asking to talk to your attorney first. Almost every peace officer's union/association worth its name has an attorney on call to represent officers involved in shootings.

It does not hurt at the same time when asking to talk to an attorney to also say you are ill and you want to see a doctor. While an investigating officer may be able explain why he fended off your request for an attorney, he will have a difficult time explaining why he denied you medical attention. The issue can be raised in court by your attorney that your statement was coerced because you were denied medical attention.

Pilgrim
 
It's starting to become standard procedure for police officers involved in shooting incidents to be taken to the ER to get checked out. Adrenaline can make you unaware that you've been hurt and it isn't unusual for an officer to experience a cardiac incident after that kind of stress.

Ask for medical attention. It may have more benefit then the obvious one of getting you some time to decompress away from questioning.

Jeff
 
Jeff,

In your experience, are officers involved in shootings required to make an official statement immediately after the shooting? Are officers generally provided with legal representation by their union prior to making a statement? Maybe it would be easier to ask what the procedure is in an officer-involved shooting? Thanks.
 
You will first be taken to the ER.

Unless you are with a super huge department like NYPD I doubt that your Union or whatever will provided you with a lawyer unless you contact prepaid legal or POAB or some other type organization.

Just like you they cannot force an officer to give a statement if he/she wishes to have an attorney present.

But, and some will balk here when they hear this, there is a set process to deal with line of duty shootings and the investigators have to not only apply self defense laws to the shoot but also apply any laws which pertain to arrest and the use of force while effecting that arrest.

But the original poster wanted to know how the cops would react to a self defense case wanting a lawyer prior to questioning, it would be handled they way anyone else wanting a lawyer would.

The questioning would stop and the investigator would make a determination to detain or release based upon physical evidence, crime scene and witness statements etc...
 
I've just resigned that if I used force on another human being, I'm going to spend the night in jail until I get my chance to appear in front of a judge. After embracing that premise, I'm less inclined to think I can explain my way out of it to the good men coming to the scene.

Police Officers are in the business of looking for someone to assign blame for what happened. Any misrepresentation of what happened, intentional or otherwise, will be seized upon and regarded as a lie, and is going to be hard to get away from afterwards.

I figure I'll just tell the responding officer I was in fear for my life, and was left no choice. I'll fully cooperate with the investigation, but I need to have a conversation with my attorney first, and he'll communicate my statements for me better than I can.

If pressed further, I'll mention I understand they have up to 48 hours to make their statements when they shoot someone, and ask that I be extended that same courtesy. I'd like to help, but I'm too shook up to talk about it right now, and am lucky I remember my own name after all that happened. Any statements I make are likely to be clouded by being rattled over seeing the Grim Reaper in our midst.
 
The only thing to be said is "I need to speak with my lawyer." If you don't have one, just keep saying that until you get in front of a judge who can appoint one for you.

I am serious about this. Most of my clients get into a bad situation because they talked. Things that you think might be harmless or helpful to your defense will be heard differently by the wrong prosecutor and might end up being believed by the jury.

On this note, if you carry a weapon you'd really better have a number to call. I realize that the cost of a lawyer is sometimes very high, but save for it like you save for a new gun.
 
Lawdog needs to chime in. In fact, he already has. Go see his blog. He wrote a piece, giving much of the same advice on this thread.

The 'Dog also says that the problem is getting the shooter to shut up. Once a person has shot someone, they are usually in shock and will be far more likely to talk. So call the ambulance, your lawyer, maybe a priest, and then sit down and put some duck tape on your mouth. Cause you are going to need it.
 
Unless you are with a super huge department like NYPD I doubt that your Union or whatever will provided you with a lawyer unless you contact prepaid legal or POAB or some other type organization.
Click to expand...
My department had 80 sworn deputies. The deputy sheriffs association had prepaid legal to handle management-labor problems and shooting incidents.

Pilgrim
 
talk to the best criminal lawyer you can find...before you need him. If you don't know who the best criminal lawyer in your area is, ask an officer who he hates to see at the defense table in court, or who he'd get to represent one of his children if they got in trouble with law. Competent legal representation is not cheap. And like almost everything else in life, you'll get what you pay for. Don't think that just because the Miranda warning says if you can't afford a lawyer, one will be appointed for you, that the court will take your plea of poverty at face value. You will have to prove that you can't afford an attorney. And in most cases if you have assets you could sell to pay for an attorney, then guess what? You'll have to get your own attorney. Around here, if you are employed, you can pretty much forget getting a public defender appointed. Listen to your attorney. He has experience dealing with the police and the prosecutors in your area.

Do not do anything that could be construed as altering the scene. Don't pick up the bad guys weapon or move it. Don't move or pick up any brass. Don't fall prey to any of the internet myths about doing something to make your case for self defense more clear cut. You may be cleared of the shooting and go to prison for obstruction if you do.

Remember that there will be at least as many versions of what happened as there are participants and witnesses. These situations are often not clear cut. Especially if they start with a verbal altercation. If it looks like you're going to jail for the night because you don't want to talk without your attorney, for heavens sake don't decide to start talking. A night in jail won't be a pleasant experience (although some of our regular customers don't seem to mind it) but it's a lot more pleasant then a few years in the state pen.

Don't have silly thoughts like "The officer will think I'm guilty if I invoke my right to an attorney." The officer will think you are smart. Few officers would make a statement without an attorney.

Follow El Tejon's good advice, and ask for medical care. It would be really bad to win a gunfight and an hour latter fall over dead from a heart attack or stroke because your body reacted badly to all the adrenaline. If you're pushing middle age and live a relatively sedentary lifestyle, it's a distinct possibility. It's happened to way too many officers after a shooting or car chase.

Jeff
 
a word to the wise about jail

An additional word to the wise if you go to jail - the keep your mouth shut provision applies absolutely, not just when you are sitting in an interview room with an investigator. Assume that any phone calls are recorded - in my jurisdiction, they are, and what you say may end up being played for a jury. Don't assume that the guy you are talking to in the rec room is your pal, because he will turn "jailhouse snitch" and sell what you say, or what he claims you said, for a deal for himself. Said "pal" could also be an officer undercover to elicit information from you.
 
you should also assume that any conversations you are having with your lawyer while you are in police custody are being listened to by someone who does not care if you are innocent or not, but just wants another notch on his belt, and you are a good choice for that notch. this is a serious breach of conduct, but is not unheard of, and is probably more common than anyone wants to admit.

if you feel the need to confess to your lawyer, wait until you are out of police custody if at all possible.

remember that no police officer ever got any brownie points for an investigation that cleared an innocent person they already arrested.
 
Posted by Jeff White
Do not do anything that could be construed as altering the scene. Don't pick up the bad guys weapon or move it.
Click to expand...

I would assume you are referring to a deceased bad guy? If the perp is still alive, or there is a remote chance he may be alive,I am going to have the weapon whatever it is, out of his reach.
 
So, let's say I'm in shock and don't remember all of this good "Shut your mouth" advice when the police first show up. Let's say that they just ask for a statement without first giving me a Miranda warning, perhaps thinking I am a witness. Let's then say that I just blurt everything out in an adrenaline induced haze. The police then give me my Miranda warning and then I remember to shut up. What is the status of my non-Miranda warning report? Can what I said before receiving a Miranda warning be used against me? Or is any information determined as a result of my pre-Miranda report considered 'fruit of the poisoned tree' similar to the results of illegal search and seizures?

Regarding the locating of an attorney prior to an event, would an attorney (located near where my wife works) who successfully defended an individual who did use lethal force in self defense be a good start?

The below quote is from a local news station's website (WKBW) regarding the disposition of the case.

NOT CHARGED
A grand jury in Oswego has decided not to indict the man accused in the stabbing death of a visiting Buffalo State College fraternity member. Christopher Motola was charged with first degree manslaughter after stabbing 22 year old Luis Antonetti of Buffalo. Authorities say Antonetti and two other members of a Buffalo State frat vandalized Motola's home in February, thinking it was a rival fraternity house.
Click to expand...

As an additional question, failure to be indicted by a grand jury is kind of meaningless in this situation, right? A district attorney could always re-attempt to obtain an indictment in the future, right?

Thanks!
 
Remember the old boy scout motto: Be Prepared. You put a great deal of thought into what pistol to carry, research and practice with your choice of carry ammo, same with your holster and CHL (unless you are either lucky to be in VT or AK, or unlucky to be in CA, IL or MD). You should already have a plan set up, a lawyer, disposable camera, notepad and PRACTICE. A CHL is not in the cards for me until I can move out of state, but the possibility of a home defense scenario and a couple news stories about shootings where an otherwise clean shoot resulted in criminal conviction, or litigation that left the would-be victim in the poor house, or worse, promted me to speak to a lawyer. He took the time to explain not only the best course of action to avoid prosecution, but also litigation with its lower burdon of proof. He suggested the notepad and camera to record: time of incident, time of LE arrival, names and contact info for witnesses, and all responding officers, to avoid writing any details of the incident for the same reason as to not make a statement. Call your choice in lawyer and if necesary someone to post bail as soon as possible. Prepare a brief statement for the 911 call and responding officers with your lawyer, and practice with it such as (you)I need police and medical assistance (911) what seems to be the problem (you) I was attacked and forced to shoot in my defense. He told me not to elaborate, but to politely answer questions as to location, wound location, condition of yourself and the assailant, but not about specifics of "what happened". Just about everything else he told me has been pointed out previously in this thread. A free consultation (your results may vary) is well worth the trouble to help avoid jail time and law suits IMO.
 
If you want to cement the idea in your mind of not talking in a post-defense situation, read Homicide: A Year on the Killing Streets by David Simon. It's a true story tome and written by a journalist who spent a year w/ Baltimore City PD's homicide unit. It conveys "keeping your mouth shut" very powerfully. I won't ruin the book for those who may read it, but you'll come away with two key concepts:

1. Baltimore City is a bad place. (I used to live outside of it and know firsthand.)
2. Don't talk to the police WITHOUT an attorney, EVER! Don't talk to the police WITH an attorney, EVER! Get an attorney and let him/her talk FOR you.
 
mek42, You need to ask those questions to an attorney. Are you really going to rely on the advice given over the internet on those specific questions?

If you need good counsel, you'll find it when you need it. The best advice I was given is use whoever you can get to answer your call, or even the public defender if you qualify, to get you through the bail hearing and out of jail. Once you are out, then spend your freedom doing the research to assemble the legal representation you need to answer any charges.
 
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