shootout and insurance

[another okie]

An interesting Oklahoma case appears in the current issue of the Oklahoma Bar Journal. Leaving out the irrelevant details, two drivers get into it, one gets out and shoots the other.

The shootee sues, and when the shooter doesn't show up, changes the case from an intentional act to an "negligent" discharge. This has the effect of allowing the shootee to sue the shooter's insurance, since insurance covers negligent acts (such as a car accident) but not intentional acts (such as pointing a gun at someone and pulling the trigger.)

The Oklahoma Supreme Court is sending it back because there were obviously some shenanigans at the lower level, but it is a reminder of something Massad Ayoob has said.

The shootee's lawyer will jump on any suggestion that your self-defense shooting was "accidental" since that allows them to go after your insurance.

So don't say anything like "the gun just went off" or "I was surprised when it went off" or "I didn't mean to shoot him."

If your life was in danger, say so. "He was trying to kill me, so I defended myself and shot him."

 

[Double Naught Spy]

If your life was in danger, say so. "He was trying to kill me, so I defended myself and shot him."

You actually haven't had the benefit of speaking with a lawyer, have you? I don't know of any lawyers that suggest you make a statement to the police after a shooting where you state your reason and response.

 

[Futuristic]

Double Naught Spy wrote:

You actually haven't had the benefit of speaking with a lawyer, have you? I don't know of any lawyers that suggest you make a statement to the police after a shooting where you state your reason and response.

Actually, the considered advice of the advanced training providers these days, all of whom consult regularly with lawyers, IS to make a VERY LIMITED STATEMENT. (Note the caps for Very Limited!)

Many suggest a script like such:

1. I was in FEAR for MY LIFE! (Substitute my wife's life if defending her, etc.)

2. I WANT HIM ARRESTED! (Even if half his brains are lying 10 feet from the other half, this makes him the Criminal and you the Righteous Citizen. Also, any Officer who hears you say this, will HAVE to Testify to you saying it in Court when questioned by your Lawyer. When the Jury hears that you said you wanted the other guy arrested, they will be less likely to believe that you just gunned him down because he was 'uppity' with you. It helps to paint a picture for the Jury of you as a Law Abiding, Law Respecting Citizen.)

3. I NEED TO SPEAK WITH MY LAWYER! (This one should be obvious by now.)

Don't embellish, don't answer any other questions about the event, only about ID and Contact info for Family and Lawyer. Keep repeating Item 3 until they get the picture that you really AREN'T going to answer questions.

Once you have spoken to your Lawyer, the OPs point stands: It is (in most of the US) much easier to get off for a lawful act of self defense, than for a negligent wounding. The penalty for the negligent act might be lower, but the chance of conviction is far higher, especially if you admit to it!

Futuristic

 

[TexasRifleman]

Many suggest a script like such:

Never heard one suggest that at all.

The conventional wisdom as I've read it is that you ask for medical attention at the scene to get you away from the high stress environment.

Tell the police on the scene you are not sure if you are injured and you would like medical attention.

That's all.

Don't talk again until you have a lawyer.

It's not a race to "be first".

 

[jaholder1971]

TexasRifleman,

Mas Ayoob has offered a plethora of information on this type of scripting. I've also seen this printed on cards offered by a number of RKBA organizations, such as Western Missouri Shooter's Alliance, written up by lawyers.

My own attorney also checked it out and gave it his approval.

 

[Double Naught Spy]

Actually, the considered advice of the advanced training providers these days, all of whom consult regularly with lawyers, IS to make a VERY LIMITED STATEMENT. (Note the caps for Very Limited!)

Well if "advanced" training professionals have talked to lawyers, it must be okay.

Of course, the really cool thing for the cops is that once most people start talking, they can't stop. They end up saying something stupid or out of context.

 

[shadowalker]

Of course, the really cool thing for the cops is that once most people start talking, they can't stop. They end up saying something stupid or out of context.

This is exactly why we must train for every aspect of a deadly force encounter, from before the shooting to after. Being completely uncooperative with responding officers isn't going to help your case just as babbling about how more people need to be shot, etc wont.

I was also advised to make a limited statement, partly for their safety, they don't know what happened, something alone the lines of:

"Two people entered my house with force, at least one was armed, I felt the life of myself and family was in immediate danger, I shot one of them, the other person ran south, his description was ... I want to cooperate with your investigation, but I need to speak with my attorney."

Also get the name of the officer you give your statement to and only give one statement, you don't want to contradict yourself even by accident. If another officer requests your statement reply that "I want to cooperate with your investigation, I already gave my statement to officer x and need to talk with my attorney before making further statements."

 

[TexasRifleman]

My own attorney also checked it out and gave it his approval.

No offense intended but if you spoke to a criminal attorney and he advised you to say anything at all to the Police without him present I'd find a new attorney.

If you spoke to a civil attorney you should be wary taking advice that is normally outside their line of work. Good intentions are one thing, but it's not all there is.

Speak to a criminal defense attorney and see if they ever advise you to talk to the police.

No offense intended to Mr Ayoob either but he is not a lawyer; he IS a cop. I've never read his stuff so I don't know what he advises.

The idea that you can, under an intensely stressful situation, control your tongue to the point where you can articulate exactly what happened without making any mistakes at all and getting yourself into hot water is pretty farfetched.

The problems is that, as Double Ought mentions, once you start talking it is difficult to stop. Also if you say anything in those first few minutes that is wrong and you later correct well then you've "changed your story" and only bad guys change their story right?

Always remember. The police on the scene of any incident are NOT there to help you.

And of course it makes a huge difference where you are as well. If I'm inside my home in Texas and shoot an intruder in the middle of the night I'm on such solid ground that if I DO slip up and say something wrong it's likely to not matter. On the other hand, being inside my home and having to shoot an intruder is a traumatic event and the defense attorney I paid to advise me on this told me to say:

"I am very shaken up, I would like to see some medical attention before I speak with you, I am not sure I am alright. After that I'd be more than happy to talk with you".

This immediately gets you into the hands of EMS or FD folks who ARE there to help you. Gives you a few minutes to calm down and frankly you might really need medical attention. Having to shoot someone can play hell with your system.

If you're involved in some kind of more questionable incident then it's even more important to get the fact straight and the odds of you saying anything at all wrong in those first few minutes is pretty high.

You're gambling with your future by believing that you can get into a verbal dance with the police and win.

 

[alsaqr]

"You actually haven't had the benefit of speaking with a lawyer, have you? I don't know of any lawyers that suggest you make a statement to the police after a shooting where you state your reason and response."


Bingo!!!! Never speak to the media. Do not talk to the police without a lawyer present.

It must have been some kind of road rage confrontation. Perps who get shot in righteous cases are not allowed to sue in civil court under the "Stand Your Ground Law."

 

[another okie]

I am a lawyer, and yes, I've spoken to a few of them. It's true that Ayoob is not a lawyer. But Ayoob has been around a lot more self-defense shootings than any lawyer I know.

No course of action is best in every situation. In a street setting, I think you need to make it clear that you are the victim, or you will be the criminal. In other settings that might be obvious and it might be better to say nothing. It partly depends on what attitude the police are taking and your ability to control your tongue.

Certainly you should never speak to the media.

The point I was trying to make is never, never to say "the gun went off" or "I didn't mean to shoot him." The case I am citing confirms a point Ayoob has made often in the past, and supports his credibility as far as I am concerned. If you think you know better, read the case I am discussing: Savage v. Burton and State Farm, 2008 OK Civ App 20, no. 104,335. It's in the current Oklahoma Bar Journal, 79 # 8, page 668.

That is the main point, which is getting lost in the desire of all the posters to tell us exactly what will happen after a shooting. That is impossible to predict. Life is not a math formula or an engineering problem.

This statement is sort of correct, but needs a note:

"It must have been some kind of road rage confrontation. Perps who get shot in righteous cases are not allowed to sue in civil court under the "Stand Your Ground Law."

Anyone can sue for anything. They might not win, but by the time the courts figure out if that law applies, you are going to be out a lot of money defending yourself. Someone has to figure out if it's a "righteous" case, and that person is the judge or jury. There's no magic machine to get rid of cases that shouldn't have been filed.