What usually happens if having to use a gun in an altercation?

[Bulletski]

I have a question regarding what usually happens after an altercation when a gun was used.
It’s common knowledge that if some character accosts you with a weapon and you shoot him dead, then it’s pretty sure that you’ll get off, it being a clear cut case of self defense - if it can’t be proven otherwise.

BUT what if you’re accosted by some character that isn’t armed but is physically pushing you around and maybe has even punched you in the face.
So, let’s say you shoot him. Next step is to call 911 and report it. Then the cops show up and from what I understand, they arrest you regardless of what happened.
So, you’re hauled off to jail.
Then you have to get a lawyer. Then you have to start paying lawyer fees.
Then when it goes to court you end up with some prosecutor that only want’s to convict you. And even if you’re found not guilty, you’re on the hook for a lot of money to the lawyer.
This is what I understand is the usual outcome - if you’re found not guilty.

I’d like to know if this basic scenario is correct?

Maybe some of you have had experience with this or know someone who has.

Thanks for replies.

 

[Frank Ettin]

This thread, "What to do After a Self Defense Encounter", might be a place to start.

 

[RickD427]

Retired LEO here, with more than 30 years experience, most in the inner-city.

There'a a lot of bad information in your posting. I've responded to hundreds of cases where folks used force in self defense, with probably 20 involving shootings. Out of all those, only two of the folks claiming self-defense went to jail. One was a police officer from another jurisdiction who broke the arm of a young boy who had taunted his son (no crime involved) and the other was a purported victim who beat a "suspect" severely with a baseball bat believing that the "suspect" had attempted to break into his truck (there was no evidence of any attempted entry and witneesss made clear that the real victim made no effort to break into the truck). None of the victims involved in the shooting cases were arrested at the scene.

Let's please dispel the "You're going to be automatically arrested" myth right from the get go. The law requires that there be "Probable Cause" to believe that a crime has been committed before an arrest can be made. There is no exception made for shootings. Even if the LEOs at the scene make a baseless arrest, the combined effect of the U.S. Supreme Court cases of Gerstein v Pugh and Riverside v McLaughlin require that a judge review the facts of an arrest within 48 hours and make an independent finding that probable cause existed for the arrest. You will likely find yourself being "Detained" at the scene while the nice LEOs do their initial fact finding. Although some defense lawyers like to equate a "detention" with an "arrest" they are legally quite different, and the case law treats them differently. The U.S. Supreme Court case of Terry v Ohio set the standards for an investigative detention. It requires a "Reasonable Suspicion" that the person is connected to a crime (a lower standard than is "Probable Cause"), Terry permits a non-intrusive personal search for weapons, and subsequent case law only allows the detention to last as long as is needed for an uninterrupted field investigation. Subsequent case law pretty much sets two hours as the outer time limit, and some cases have held that a 15 minute detention was too long.

We actually have a pretty strong bias against arresting folks at the scene of serious crimes, and tend to do so only if there is evidence that the potential suspect will flee if not immediately arrested. The reason is in the Gerstein and Riverside cases. If we make an immediate arrest, we have to finish enough of the investigation before the Gerstein Hearing (required within 48 hours of the arrest) to prove probable cause. If we don't make the arrest, we can take enough time to do a complete investigation.

The law allows folks to use "Reasonable" force in self defense. In your example of being accosted by a person "pushing" you around, if the you and the person doing the "pushing" are of comparable physical capabilities, the use of deadly force would not be "Reasonable." Plan on a trip to jail if you shoot. OTOH, if you're a 90 year old man in a wheelchair and the person doing the accosting is a 25 year old bodybuilder, then things may be different.

I've never seen a prosecutor that only held the desire to get a conviction. Most are biased in the other direction, if the case isn't legally pristine, they'll decline filing. There is, IMHO, some danger involved in the "Plea Bargaining" process. Some prosecutors will try to plea out a poor case, and sometimes the offer is too good to refuse, but that's for another thread.

One place that you're correct is in the liability to legal fees. If you have the ability to pay for an attorney (even a public defender), you're going to pay.

 

[Bulletski]

Thanks for the reply. I guess it all....depends....

 

[Spats McGee]

I have a question regarding what usually happens after an altercation when a gun was used.
It’s common knowledge that if some character accosts you with a weapon and you shoot him dead, then it’s pretty sure that you’ll get off, it being a clear cut case of self defense - if it can’t be proven otherwise.

BUT what if you’re accosted by some character that isn’t armed but is physically pushing you around and maybe has even punched you in the face.
So, let’s say you shoot him. Next step is to call 911 and report it. Then the cops show up and from what I understand, they arrest you regardless of what happened.
So, you’re hauled off to jail.
Then you have to get a lawyer. Then you have to start paying lawyer fees.
Then when it goes to court you end up with some prosecutor that only want’s to convict you. And even if you’re found not guilty, you’re on the hook for a lot of money to the lawyer.
This is what I understand is the usual outcome - if you’re found not guilty.

I’d like to know if this basic scenario is correct?

Maybe some of you have had experience with this or know someone who has.

Thanks for replies.

Yes, some or all of the above could happen, as in "there is a non-zero probability." That's quite different from "it's going to happen." To greater or lesser degrees, all of us who CC run some non-zero risk that: (a) we'll be involved in a SD shooting; and (b) we'll have to deal with law enforcement about it. IMHO, it's good to recognize that well in advance of any such shooting. As a buddy of mine likes to say, "the middle of a gunfight is no time to learn new skills." Same with legal issues. I don't really want to have to make complex legal decisions right after an SD incident. At the same time, I would expect to have to make at least some short statement to the police about what happened.
Step 1: Survive SD incident.
Step 2: Survive police arriving on scene*.
Step 3: Make short statement to police.
Step 4: Exercise my right to remain silent.

*= I mean no disrespect to our LEOs with this. However, even where there's been a fully justified shooting, there is some risk that things will go south for everyone when the police will show up on scene, looking for someone with a gun.

Yes, there are dirty prosecutors out there, and overzealous ones. By and large, very few that I have ever run across have fallen into either of those categories. Besides, most of the folks on this board would be completely boring targets for prosecutors. They want to take "Bad Guys" off the street. Guys with strings of felony convictions. Most of the folks here on THR have CC licenses, livelihoods, families, we get background checked every time we buy a gun through an FFL, ... We're just not interesting for prosecutors. Again, that's IMHO, and YMMV by location.

Retired LEO here, with more than 30 years experience, most in the inner-city.

There'a a lot of bad information in your posting. I've responded to hundreds of cases where folks used force in self defense, with probably 20 involving shootings. Out of all those, only two of the folks claiming self-defense went to jail. One was a police officer from another jurisdiction who broke the arm of a young boy who had taunted his son (no crime involved) and the other was a purported victim who beat a "suspect" severely with a baseball bat believing that the "suspect" had attempted to break into his truck (there was no evidence of any attempted entry and witness made clear that the real victim made no effort to break into the truck). None of the victims involved in the shooting cases were arrested at the scene.

Let's please dispel the "You're going to be automatically arrested" myth right from the get go. The law requires that there be "Probable Cause" to believe that a crime has been committed before an arrest can be made. There is no exception made for shootings. Even if the LEOs at the scene make a baseless arrest, the combined effect of the U.S. Supreme Court cases of Gerstein v Pugh and Riverside v McLaughlin require that judge review the facts of an arrest within 48 hours and make an independent finding that probable cause existed for the arrest. You will likely find yourself being "Detained" at the scene while the nice LEOs do their initial fact finding. Although some defense lawyers like to equate a "detention" with an "arrest" they are legally quite different, and the case law treats them differently. The U.S. Supreme Court case of Terry v Ohio set the standards for an investigative detention. It requires a "Reasonable Suspicion" that the person is connected to a crime (a lower standard than is "Probable Cause"), Terry permits a non-intrusive personal search for weapons, and subsequent case law only allows the detention to last as long as is needed for an uninterrupted field investigation. Subsequent case law pretty much sets two hours as the outer time limit, and some cases have held that a 15 minute detention was too long.

We actually have a pretty strong bias against arresting folks at the scene of serious crimes, and tend to do so only if there is evidence that the potential suspect will flee if not immediately arrested. The reason is in the Gerstein and Riverside cases. If we make an immediate arrest, we have to finish enough of the investigation before the Gerstein Hearing (required within 48 hours of the arrest) to prove probable cause. If we don't make the arrest, we can take enough time to do a complete investigation.

The law allows folks to use "Reasonable" force in self defense. In your example of being accosted by a person "pushing" you around, if the you and the person doing the "pushing" are of comparable physical capabilities, the use of deadly force would not be "Reasonable." Plan on a trip to jail if you shoot. OTOH, if you're a 90 year old man in a wheelchair and the person doing the accosting is a 25 year old bodybuilder, then things may be different.

I've never seen a prosecutor that only held the desire to get a conviction. Most are biased in the other direction, if the case isn't legally pristine, they'll decline filing. There is, IMHO, some danger involved in the "Plea Bargaining" process. Some prosecutors will try to plea out a poor case, and sometimes the offer is too good to refuse, but that's for another thread.

One place that you're correct is in the liability to legal fees. If you have the ability to pay for an attorney (even a public defender), you're going to pay.

Very well said.

 

[RickD427]

Yes, some or all of the above could happen, as in "there is a non-zero probability." That's quite different from "it's going to happen." To greater or lesser degrees, all of us who CC run some non-zero risk that: (a) we'll be involved in a SD shooting; and (b) we'll have to deal with law enforcement about it. IMHO, it's good to recognize that well in advance of any such shooting. As a buddy of mine likes to say, "the middle of a gunfight is no time to learn new skills." Same with legal issues. I don't really want to have to make complex legal decisions right after an SD incident. At the same time, I would expect to have to make at least some short statement to the police about what happened.
Step 1: Survive SD incident.
Step 2: Survive police arriving on scene*.
Step 3: Make short statement to police.
Step 4: Exercise my right to remain silent.

*=I mean no disrespect to our LEOs with this. However, even where there's been a fully justified shooting, there is some risk that things will go south for everyone when the police will show up on scene, looking for someone with a gun.

Yes, there are dirty prosecutors out there, and overzealous ones. By and large, very few that I have ever run across have fallen into either of those categories. Besides, most of the folks on this board would be completely boring targets for prosecutors. They want to take "Bad Guys" off the street. Guys with strings of felony convictions. Most of the folks here on THR have CC licenses, livelihoods, families, we get background checked every time we buy a gun through an FFL, ... We're just not interesting for prosecutors. Again, that's IMHO, and YMMV by location.



Very well said.

Spats,

A very good posting. No offense taken by this LEO to your recommendation to "Survive police arriving on scene." Early in my career, I responded to a shooting scene where there was an off-duty deputy at the scene (who had just finished his shift at the station). He intervened with gun in hand. A fellow deputy, not recognizing him and believing that he was a suspect in the crime, ran him over with a patrol car (deadly force is deadly force regardless of whether applied by a firearm or front bumper). We rarely have much detail provided when first responding to a shooting and correctly identifying the "cast of characters" takes a while.

I would like to expand on your recommendation to make a short statement to responding officers. IMHO, about the worst thing you can do is to "dummy up" and say nothing. In the worst case, you could create some criminal liability for yourself. Anyone who CCW's should familiarize themselves with the U.S. Supreme Court case of New York v Quarles. That case created the "Public Safety" exception to Miranda and was the root of the "Public Safety Statement" often associated with defensive uses-of-force. Although the "Public Safety Statement" is most often discussed in relation to shootings by law enforcement officers, the root case involved a private person and the concepts of the "Public Safety Statement" are equally applicable to non-LEOs who are involved in a shooting. At the risk of over-simplifying the case law, Quarles held that the right of the public to be safe from the immediate consequences of a shooting trumped the shooter's right to silence under Miranda. The type of information covered by Quarles are those pieces of information that the LEOs must know in order to mitigate the immediate consequences of the shooting. They include, the number of rounds fired and the direction of fire, the number of suspects and their last known location, the location of any known victims, etc. IMHO, a person involved in a defensive shooting should provide a "Public Safety Statement" and then refrain from discussion any information outside the scope of a "Public Safety Statement" until they have had a chance to recover from the event and confer with counsel. Quite notably, this is the same protocol that nearly every large law enforcement agency uses for their officers.

It's important to note that the reason you fired your weapon does not fall under any of the "Public Safety Statement" criteria. A lot of ill-informed writers suggest saying something like "I was in fear for my life..." But the problem in doing this is that you invite the question "Why did you fear for your life?" If you decline to answer, then the nice LEO can infer guilt from your silence (refer to the U.S. Supreme Court's decision in Salinas v Texas). There's no need to go down that road at the scene.

 

[Kleanbore]

Step 1: Survive SD incident.
Step 2: Survive police arriving on scene*.
Step 3: Make short statement to police.
Step 4: Exercise my right to remain silent.

Step 0: Avoid the confrontation ; de-escalate, defuse, evade, escape.

 

[rust collector]

The problem with scenarios such as those contained in the original post, is that things never go according to plan. If you make presumptions that don't play out that way, you are back to square one. Better to read the cases, read the applicable laws, and use qualified resources to reduce self-inflicted harm.

Good guidance has been provided above. I agree the best practice starts with recognizing and avoiding harm. If no reasonable alternative, a proportionate, cautious response to stop threat. Then call and wait for help with hands on head, weapon in holster or pocket. Then public safety statement. Then no further comment until counsel consulted.

No matter what I might do, I am sure I would have occasion to doubt myself. Consequently, best to be alert and avert.