5 Things Every Reasonable Gun Owner Ought To Know
From a defense attorney. The first point, any good wookiee suiter should be able to figure out: Do Not Make Any Statements After A Shooting
Remember, I do this to entertain me, not you.
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February 18th, 2016 at 5:59 pm
“Do Not Make Any Statements After A Shooting”
This is quite simply wrong. Are you not going to make a 911 call? That’s a statement. Unless you’re planning on calling and then invoking your 5th Amendment right not to say anything. When the cop comes, are you going to say “I’m not saying anything” while the crowd of people who showed up after the shots were fired tell a very different story? While they hide the weapon the attacker had?
“Say Nothing!™” is a general principle improperly applied in this situation. The proper principle is “Say Little.” You cannot claim self defense in a court case unless you’ve produced evidence to show that you acted in self defense. You have to raise the claim of self defense in order to claim it in court later. If you fail to produce the evidence, in legal terms the burden of production is on the defendent, then the court can expressly prohibit you from claiming self defense at trial. And guess what? You’ve already confessed to the act that led to the injury or death. You go straight to prison.
There are three categories of statements you might make.
1. To the 911 operator: “I am X. I am at Y. This person attacked me in manner Z. I was afraid he would kill me (or my family). I was forced to defend myself. Send the police and ambulance. I am dressed in clothing ABC.”
2. The responding officer: “That person attacked me. His weapon (if he used one) is over there. I was afraid he would kill me (or my family). Those people there were witnesses. Those people were not here at the time. I need medical attention. I would like to speak to my lawyer.
3. The detective: I would like to speak to my lawyer.
This is all covered by Andrew Branca in his very complete discussion of this in his Law of Self Defense seminar.
February 18th, 2016 at 10:48 pm
Sean – those are some great points. I printed them out and used them to insulate a drafty window.
But if you wanted to make some countering the assertions in the linked article, I would suggest reading the linked article first.
But that’s just me. I’m silly like that.
February 19th, 2016 at 4:01 am
Sean – Keep in mind that police can and will use incriminating evidence against you, including your first statements on the scene… Federal rules of evidence consider any statements you make that would be helpful to be hearsay though…
https://youtu.be/6wXkI4t7nuc?t=8m23s
Reason #1 he lists applies
February 19th, 2016 at 9:16 am
“”
I often advise clients that their case isn’t about what actually happened. Their case is about what people will say happened as well as the physical evidence and reasonable inferences from that evidence.
“”
And yet this guy does *not* want you to, when the police arrive point out where the bad guy’s weapon is, where he broke in, shell casings, or any other exculpatory evidence. You know, evidence that can be kicked around, or inadvertenly moved, or simply missed.
He also doesn’t want you to point out to the arriving cops who the witnesses are at that moment.
If he were trying a case do you think he’d be *happy* if his defendent said “sure the cops missed the knife the bad guy dropped in the bushes near the entranceway but at least I stayed totally silent!”
Please if I missed the part in the article where he balances silence between pointing out exculpatory evidence, someone correct me.
February 19th, 2016 at 12:23 pm
The attorney in the linked article also recommends not carrying with a round in the chamber, claiming this reduces the risk of an accidental discharge. Sorry, but no. I carry in case I need to defend myself or a loved one. As the attorney noted, I may only have a few seconds to decide on whether to draw, maybe even less time to pull the trigger. I need that gun to work right then, right now. I don’t want to have to rack the slide or with a wheelgun rotate the cylinder before being able to defend myself.
February 19th, 2016 at 1:12 pm
Empty chamber also presumes you have two hands free at that moment.
February 19th, 2016 at 3:13 pm
The_Jack – As far as I am aware, it is standard practice for a (non-hostile) shooting suspect to do a walk through of the scene with the investigating detective(s) within a very short time after the incident. I have heard of it being done as soon as 3 or 4 hours later… I would assume that one would be accompanied by an attorney and would have time to point out evidence or locations of evidence at that time.
I don’t disagree with what you say… As I would probably point out things like that too.
But lets play devil’s advocate and suppose our shooter tells the cops that he saw the guy throw a knife in the bushes near the curb. Knife is found and has no prints on it due to whatever reason, rain, gloves, take your pick… Every witness that is interviewed at the scene is going to be asked about the knife and the bushes… And every single one of them will say “I did not see Raul with a knife. I did not see him throw anything into the bushes. I did see the guy who shot him go over to those bushes after he shot him though…” Which will play badly against the shooter in court.
Now, let’s suppose that statement was not made at the scene and the knife was not found right at that moment. But, hours later, after the attorney is involved, it is brought up and they go back and find it. Now they have to spend days or weeks tracking down every one they interviewed at the scene and ask them about it because they did not mention it before… Which creates reasonable doubt as to the reliability of said witnesses.
Which would play better in court?
February 19th, 2016 at 3:52 pm
Dear Uncle,
My take on this article?
#1 – The Telephone Number to a Great Local Lawyer
#2 – Take a Class on State Law from a Great Local Lawyer
#3 – Carry a Concealable Firearm in a reliable holster held by a good belt loaded with a reliable cartridge (so, … You can argue with people about your choices)
#4 – Take several classes on how to properly use your defensive firearm and practice, practice, and practice some more
#5 – Read Say Uncle (so, … You can argue with people about your choices)
Sincerely, Someone You Know
P.S.
This list isn’t in order, but you get the point ; – )
#6 – carry a sharp, pointy knife, just in case your handgun fails to fire. (Ha, ha, ha something more to argue about ; – )
February 19th, 2016 at 3:57 pm
So in case one… the witnesses say they didn’t see a knife.
And in case two… they don’t *mention* a knife.
And in both cases the knife is found but without physical evidence linking it to the attacker.
How come in the 2nd case the police would be more likely to assume the witnesses are lying?
Especially in the 2nd case the knife *only* comes up after the shooter has lawyered up and after hours of silence goes “Yeah I was in fear for my life, the guy had a knife see. You can find it here. I didn’t mention it before because my attorney wasn’t here yet.”
( Also why can’t the prosecutor in case 2 make the same argument as in case 1, namely that the witnesses didn’t mention the knife because it wasn’t there?)
Oh and here’s the main reason critical evidence is mentioned to the police early on.
So it doesn’t get lost.
Crime scenes are porous at the start. Especially if the perp didn’t die. Remember EMS’s goal is the preservation of life not evidence. Things can be kicked around or moved. Or there might be weather that wrecks things.
February 19th, 2016 at 5:09 pm
My speculative example, imagine in case 1, you have multiple witnesses that contradict the suspect on the scene. But in case 2, they only contradict AFTER the fact and they do so by adding details to their initial statement.
Case 1 plays much better for the prosecutor: Multiple witnesses called and asked “So you are saying that immediately after the shooting, you saw the suspect go to the location where we eventually found a weapon but you never saw the poor, church going, choir boy, honor roll student with a weapon?
Case 2 plays much better for the defense: Multiple witnesses being asked “Why did you not mention that you saw the defendant go to that area after the shooting?”
Remember, at that point, it is not about whether or not the police think you are lying… It is about a jury.
Police cannot use your truthful statements to help your case, that is called hearsay… They can use anything you say (and presumably others say), including the truthful, factual statements to convict you though.
So an officer on the stand is not allowed to say “When I got to the scene, the suspect told me that the victim had a knife and that he threw it in the bushes, where it was recovered”… OBJECTION HEARSAY!!!
But they can say “After arriving on the scene, I recovered a knife from the bushes to the victim’s left and was told my multiple witnesses that the suspect had moved over to that area after he shot the victim.”
February 19th, 2016 at 5:23 pm
“”
Remember, at that point, it is not about whether or not the police think you are lying… It is about a jury.
“”
No…. at that moment it’s about securing vital evidence to make sure it gets logged in as evidence.
That’s the point.
Hey if you think it’s more important to be stone cold silent than say the minimum needed to make sure the arriving officer is aware of critical evidence, then that ain’t my problem.
February 19th, 2016 at 5:40 pm
“If you fail to pull out your firearm right now, you will likely be punched in the face. Although this is a tad bit more difficult, I’d prefer to be punched in the face rather than be prosecuted, so I advise not pulling out the firearm.”
My response to that is as long as “killed by blow of fist / foot” appears as the Cause of Death, I’m justified in responding with lethal force.
February 19th, 2016 at 6:34 pm
If you have read any of Massad Ayoob’s articles or books on this subject, you will find that he recommends that you point out to the arriving officers the items that you are aware of that would be considered evidence that supports your self-defense claim. Avoid questions at this point, just point out relevant details, and sign nothing.
He also says that you should NOT make any formal statements for at least 24hrs minimum. Even if your lawyer shows up at the scene, that is no reason to ignore this important point. Tell them you will make a statement in 24-48 hrs, after you have had time to recover from the stress.
The first reason for this is that history shows most people will not have a clear mental view of the action that lead up to the problem, and the resulting self-defense situation, in the immediate aftermath. The whole thing leaves you somewhat off-balance mentally, and you need time to get some mental clarity about the whole mess. Memory can be unreliable immediately afterwards, and it can take a day or two to be able to bring order to it.
As part of this, don’t be a bullet counter to the police. You may not recall, but any discrepancy between what you tell them, and their on site count, can only make you look bad. Don’t go there.
The second reason is that it generates a desire to explain yourself to everyone around you, in the mistaken idea that you can fix everything if you just say enough. It become babble time, and you can end up railroading yourself into prison, even if it was a “good shoot”.
Remember, a crime has happened, and you have a valid reason for invoking the self-defense exception to it. But, you have to always remember that the job of the police is to bring a bad guy to justice. They are not on the scene to be your friend. Don’t make their job easy by convincing them that YOU are the bad guy they are on site to look for.
Besides being a long time badge toter, Ayoob is also an expert witness that sees a lot of courtroom action in this type of legal problem. He has seen this from both sides. He also advises lawyers on how to deal with self-defense cases. He knows whereof he speaks.
February 20th, 2016 at 5:10 pm
Not to mention, it means you must remove your weapon and handle it just before the shooting occurs which could be construed as brandishing or that you escalated the encounter. In fact, the person shot could claim they only attacked because they feared for their life since you had drawn your firearm.
February 20th, 2016 at 5:22 pm
You really do need to make a statement unless you wish to spend the night in jail. But stick to the strict facts. Such as, “This individual came at me with a knife, I was in fear for my life, I drew my firearm and shot him.” You could point out witnesses you know saw the event, you could indicate where you saw the knife go. Make no assumptions, speculations, explanations, etc. As Sgt. Friday always said, just the facts. Be very careful of our brains desire to stitch together a rational story which may cause doubt or questioning. Cast the moment you discharged in stone as it is the facts known to you at that moment that matter in justification.
After that, you wait for your lawyer. You do not respond to questioning about details. If they are doing that, they are working to break your assertion and misstatements are very bad. If it is a federal, it can lead to conviction for lying even if you are justified in the act.
February 21st, 2016 at 2:39 pm
This criminal defense attorney has probably never represented a single actually, philosophically innocent client wrongly accused in a self-defense shooting.
If your clients are dirtbags who are factually guilty of the things for which they have been accused, of course you don’t want them saying Word One to the po-po.
You know who clams up and says “I ain’t sayin’ nothin’ until my lawyer gets here” to the cops? Criminals. Why do you want to make yourself look like a criminal.
“This man attacked me. There’s his (gun/knife/chainsaw). Those people saw it. I’m pretty shaken up and I think I should consult my lawyer before I talk more.“