Self Defense Shootings and Talking to the Police

[beatcop]

btw , retainer for the criminal defence "use of excessive force and discharge of etc ..." $2,500 .
final total for subsequent civil suit , $5,800 . AND not being able to carry concealed for a year . AND having my weapon retained for evidence for 23 months . AND court mandated anger management classes at my expense . AND a response from any traffic stop , from then until forever, from whatever database, that I am to be considered armed and dangerous . (imagine trying to explain to your 92 year old mother why she is being ordered to get out of the vehicle with her hands above her head and assume a face down position on the street)
Now before questioning the wisdom of spending that money answer me this . What price your freedom and would you gamble everything you own and everything you would ever own on defending yourself in an otherwise frivolous civil suit or retain competent legal representation ?

So there in a nutshell is the price of self defence . Pay up or die .

~kop

This topic is a zombie thread that doesn't die.

Ok, not trying to poke you in the eye, but it looks like you took some kind of plea...if totally cleared, there would be no mandates. There is more to this incident.

Do you think any of your initial behavior affected the outcome? Should you have been more/less cooperative?

Let's face it, some armed crackhead kicks your door in, you prob won't have big issues. If your brother-in-law comes over to have a fist fight and you pop him, yeah...you need a lawyer. (Ok, gross simplification, but you get the point...?)

 

[fcs25]

As a retired police officer the best response is to say you had to shot the person because you feared for your life or the lives of your family,then shutup and request your attorney.Say nothing more period.

 

[The Lone Haranguer]

Even in a righteous shooting, a person unaccustomed to violence may inadvertently blurt out something like "I didn't mean to shoot/kill him!" or similar. If said to or in the presence of the police, it can be used against you. I believe the fancy legal term is "excited utterance."

 

[danez71]

In a self defense case, the actor will have to admit at the outset having been present and having employed deadly force; it will then be up to the actor to provide evidence to support a claim of justifiability.

Should supporting evidence not be found at the scene and disappear in rain, wind, whatever, and/or should otherwise corroborating witnesses disappear or not be questioned by police at the scene, no amount of "lawyering up" after the fact can undo the damage. An attorney cannot produce evidence that he or she does not have.

Not so in AZ. Burden of proof is now on the prosecution that you did not act in self defense.

Obviously this isnt so cut and dry in practice. Defensivly shoot someone at a restaurant with a beer on your table thats not even yours.... expect that you may be treated differently than defensivly shooting someone in your house with a pried open window....... thats pried open from the outside of course

This is essentially what Massad Ayoob and some others recommend, and why:

1. Say something like, "That person, or those people, attacked me." You are thus identifying yourself as the victim.
2. Say something like, "I will sign a complaint." That establishes that you viewed the conduct of the other party to be criminal. It also shows a spirit of cooperation.
3. Point out possible evidence, especially evidence that may not be immediate apparent. So if the assailant's knife slide under a car, tell the investigating officer. If the assailant dropped his gun in the bushes as he ran away, mention that. You don't want any such evidence to be missed.
4. Point out possible witnesses.
5. Then say something like, "Officer, you know how serious this is. I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."

Agreed.

1) They attacked me and I was going to die <unless I acted>... They were going to kill me (try not to say: I thought they might kill me) etc etc.

2) If, they arent obviously dead, #2 is good. If they are obviously dead "I just wanted them to stop... I didnt want him/her/them to kill me." may be a good alternative.

(In AZ see below for another law that you could use to your advantage)

3,4, & 5... spot on

Now in Az we also have ARS 13-421(B)(1) & (2)
1. Verbally informing another person that the person possesses or has available a firearm.

2. Exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect the person against another's use or attempted use of unlawful physical force or deadly physical force.

(note that it does not say firing warning shots is ok)

So another consideration is something like:
"I heard the window break and people inside.... I yelled "get out, I have a gun".... they said they were going to kill me and came at me anyways".

In AZ there is no duty to retreat per ARS 13-411(B) so you shouldnt need to worry about being faulted for not running into a bedroom closet and hiding untill they actually kill you.

YMMV and certainly you locations laws will apply.

 

[Frank Ettin]

In a self defense case, the actor will have to admit at the outset having been present and having employed deadly force; it will then be up to the actor to provide evidence to support a claim of justifiability...

Not so in AZ. Burden of proof is now on the prosecution that you did not act in self defense.

That was a very satisfactory change in the law that took place at least in part as a result of the Harold Fish case. Mr Fish paid a very high price to help get the law changed. He was convicted of manslaughter and sent to prison. Thankfully, he won his appeal, and the prosecutor elected to dismiss the charges rather than re-try him. He is now free.

A number of States have this sort of rule, but it really isn't quite as simple as it looks. See 13-205A, Arizona Revised Statutes which provides, "...If evidence of justification pursuant to chapter 4 of this title is presented by the defendant, the state must prove beyond a reasonable doubt that the defendant did not act with justification...." Here's how that would work:

[1] The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But you've admitted that, so we go to step 2.

[2] Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. You don't have to prove it, i. e., you don't have to convince the jury. But you must present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

[3] Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.

So let's consider a sort of oversimplified example to illustrate how all that might work.

[1] You testify as follows: (1) the person you shot came charging at you with a knife yelling that he was going to kill you; (2) you drew your gun; (3) you think he saw it, but he did not stop his charge; (4) your back was to a wall; (5) he got to within a few yards of you and you realized that the only way you'd be able to stop him and avoid being stabbed was to shoot; and (6) you shot several times until the man attacking you fell just a few feet in front of you. (I know you have no duty to retreat, but if in fact you could not retreat it would help the jury's impression of you to mention that.)

[2] You have just presented evidence establishing prima facie that your use of lethal force was in justified self defense. It's now up to the prosecutor to prove that you were not.

[3] So the prosecutor may well put on the witness stand the first officer or officers on the scene as well as the officer involved in the crime scene investigation. They might testify along the following lines: (1) they found the defendant holding a recently fired gun and standing over the body of the "victim"; (2) they saw nothing to suggest, nor had any reason to suspect, that the "victim" had attacked the defendant; (3) they conducted a usual routine search of the area and found no weapons other than the gun that was in the possession of the defendant; (4) the first time they had reason to suspect that the defendant was claiming he was attacked was two days later when he gave a statement to that effect, said that the person shot had a knife and that he believes that he saw the knife fall down the storm-drain after the now alleged assailant fell; and (5) they returned to the scene of the crime and had the Department of Public Works open access to the storm-drain and sewer, but after an extensive and diligent search did not find a knife.

[4] Now do you think the forgoing might help the prosecutor successfully convince the jury that you did not act in justified self defense?

[5] Now do you think that it would have helped you if the investigating officers had instead said: (1) upon arriving at the scene you immediately claimed to have been attacked by the person who had been shot; (2) you said he had a knife; (3) you said the knife fell down the storm-drain; and (4) they immediately conducted a search and found the knife?

 

[chieftain]

My attorney, who was a friend, was very Succinct with his advice, "Exercises your Constitutional right, and please, please, please help me defend you and ****!" (he really said please three times.)

I have worked professionally with professional interrogators. Once you start talking, they own you.

There is a reason it is so hard to convict Organized Crime members. They know the magic words, "****"!

Add to the fact I live in Arizona, it is in my best interest to listen to my Attorney.

Go figure.

Fred

 

[danez71]

fiddle, yes, I agree.

Funny, after reading your scenario and mine, I realized I didnt insert a knife into the story.
My scenario:
BG in my house... I point to pried open window.... point to BG.. point to knife/gun next to BG. Tell police he was going to kill me... I yelled 'get away Ive got a gun' "hoping" he would go away (not to threaten)... he came at me anyways... I had to stop him before he killed me.

I know nothing is that simple but that is about the best scenario I can hope for.

What I'm most worried about is the scenario outside my house because him breaking into my house with weapon in hand would be a big part of the defense.

Outside my house is what I'm most conerned with especially in my line of work. But the same principles apply.

 

[chieftain]

But the same principles apply

Depends on your jurisdiction.

Go figure.

Fred

 

[massad ayoob]

Insofar as the thread topic, Fiddletown nailed it.

It seems that a couple of contributors have come down with Kool-Aid Poisoning. Fuzzy TGF, if you think my account of the FBI incident was fantasy, neither you nor your source have ever discussed the case with any of the survivors, or heard directly from any of those who investigated it, or even seen FBI's training film on the incident. I HAVE accessed those sources, and incorporated them into what I wrote about it. Stickhauler, your BS story about a DEA raid was exposed as fantasy last year, by a DEA agent as well as by me, and its no less BS now.

 

[Double Naught Spy]

Without paying for advice on the CD (which may be quite fine), Ayoob has good points, and this video has some good points.
"Law school professor explains why not to talk to police."
http://www.wimp.com/coprule/

The lawyer speaks very fast and a cop comments in the 2nd half on what he says. A couple of the salient points are that you aren't going to talk the cops out of arresting you and that you may very well talk them into arresting you when they otherwise might not have done so. The cop agreed that he has never been talked out of arresting anyone in his long years of service and that comments made have caused him to arrest folks that he might not have arrested otherwise.

I don't fully agree with the logic on a theoretical level. While you aren't going to talk the cops out of arresting you, might be able to provide them with information that would keep them from reaching the decision to arrest you. On a realistic level, I am more fearful of saying something stupid or wrong that would end up causing me more problems and convincing the cops that they need to arrest me. Best to not say anything and if the cops reach the decision on the other information that they gathered that they need to arrest me, then my lawyer will be on the payroll, anew, a bit sooner.

 

[CAS700850]

I've been in this debate many times, and I think my view is skewed by the fact that I was a prosecuting attorney for 12 years. I've taken hundreds of cases through the grand jury process, and reviewed even more than that with cops. It's from that perspective that I've decided that (God forbid) I am involved in a shooting, I will talk with a lawyer present. Here's why:

1. The decision to arrest/incarcerate is usually the decision of the investigating officer/detective. The more co-operative I am with that officer, the less likely he or she may see me as a flight risk or a threat to commit further offenses. Hence, the more likely it is that I'll be set free after the initial investigation has ended.

2. The Grand Jury process is the ultimate home field advantage for the prosecutor. He or she controls what evidence is presented. During the presentation, the jurors may ask what I said, or what my side of the story was. Assuming for a minute that the prosecutor is honorable and fair-minded, I'd like the investigator to be able to tell them that I was very co-operative, and then tell my story. That is, if the prosecutor allows it.

3. I hold out hope that if I'm co-operative, if I tell a good story which is supported by the evidence, then maybe the prosecutor reviewing the case will decide to reject the case without even presenting it to the grand jury.

4. Another thought I've had is that I'd have my attorney go on record (with a letter) informing the prosecutor that I'd be willing to testify before the Grand Jury. I've seen it happen, and it's a powerful thing to see the "subject" testify, to directly answer the juror's questions, and see the jurors understand the "subject's" position. Both times I saw it happen, the case was "no billed."

Well, that's my plan. But remember, it's what works for me, not necessarily everyone...

 

[chieftain]

I agree with talking with MY attorney present, even if he is a Public Defense Attorney. Just don't say anything until you have sat down with your own attorney.

We now have a experienced Prosecutor, experienced defense attorney, and investigating Detective all telling us not to talk to the Police at the scene. Every one of them states to talk to your own attorney first is their considered advice.

I will take that very considered advice, along with my own attorney's advice and at the scene of any situation I may be in, ****! I can always talk later with counsel and/or counsel present.

Of course like so much else in life, the amateurs always know better, then the professionals. Just listen to their rationalizations.

Go figure.

Fred

 

[Frank Ettin]

...your BS story about a DEA raid was exposed as fantasy last year, by a DEA agent as well as by me, and its no less BS now....

This post should resolve that nonsense story: http://www.thehighroad.org/showpost.php?p=5460652&postcount=107.

 

[Craig_AR]

Aftermath Training - Armed Citizens Defense League

The best advice in this question can be found in the training materials and newsletters of the Armed Citizens Legal Defense Network.

http://www.armedcitizensnetwork.org/

I urge very member of this forum to join this excellent organization.
The advice and training comes from board member Masood Ayoob and several lawyers familiar with the issues.
New members receive three DVDs which include very specific advice on this question, as well as other information on how to prepare in case you ever do have to use a gun in self defense, plus how to act after the incident.
There are further discussions on this topic in issues of the newsletter.
Another membership benefit is an immediately available $5000 to use as a legal retainer in case you are involved in a defensive shooting, plus the founder/president or other qualified adviser will, if requested, fly to your location to assist in initial response and selecting a lawyer.
The ACLDN is only a few years old, and still growing. The goals and structure and purpose are unique among gun owner organizations. It is still growing, and deserves our support. I joined last summer. As I prepare for my first renewal year, I will be upgrading to the family membership, so my wife is also fully covered by the support structure.
Read the web site, join, and learn from the DVDs, web site, and newsletters.

Oh, and their advice? Clamming up and waiting for a lawyer is a really bad idea. Communicate clearly that you are the victim, that you feared for your life, and that you will press charges against the attacker. One of the biggest reasons to be up front with this is to get the police looking for evidence and witnesses that will support your story. Refusing to speak until you talk to an attorney pretty much guarantees that all witnesses and evidence in your favor will dry up before the police make any effort to find it.

But, don't believe me... sign up and watch the member training videos.

Craig

 

[Double Naught Spy]

Oh, and their advice? Clamming up and waiting for a lawyer is a really bad idea. Communicate clearly that you are the victim, that you feared for your life, and that you will press charges against the attacker. One of the biggest reasons to be up front with this is to get the police looking for evidence and witnesses that will support your story. Refusing to speak until you talk to an attorney pretty much guarantees that all witnesses and evidence in your favor will dry up before the police make any effort to find it.

My lawyer says different.

But, don't believe me... sign up and watch the member training videos.

$85 to sign up and watch the videos. No thank you.

 

[Kleanbore]

My lawyer says different.

Does he or she happen to have experience in self defense cases? You might ask whether, if you were indicted for a shooting and intended to base your defense on a claim of justifiability, he or she would intend to defend you alone or to bring in another attorney who is experienced in such cases.

Regardless of the answer to the first question, if the answer to the second is "the latter", find out who and ask that one.

Regardless of the answer to the second question, if the answer to the first is "no", do not rely on what you have been told.

If the answer to the second question is "the former" and the answer to the first is "no", find another attorney.

$85 to sign up and watch the videos. No thank you.

At national averages, that would pay for about twenty minutes of an attorney's time. Better to join and share the cost with the other members.

 

[emb]

This is always an interesting question and creates an almost impossible dilemma for someone involved in a self defense shooting.

If you choose to say nothing at all "****", which by the way is usually really good advice, the police are left to draw their own conclusions based upon circumstances as they perceive them to be. Those conclusions may or may not be in your favor. No disrepect intended, but some police are not very bright or they are trying to validate a preconceived conclusion that you are or were the BG. Your after the fact explantion of self defense may be twisted into an after the fact justification.

If you choose to talk to them and say "I was attacked, robbed, etc. by that guy or guys" and "I feared for my life (for whatever reason)", you have just admitted that you shot someone. Whether it is justifiable or not under the circumstances is a factual determination that by definition can go either way.

At lot depends upon the law of the state. Although your constitutional rights do not vary from state to state, whether a shooting is justifiable as self defense varies greatly from state to state and varies greatly under different circumstances. For example forcible entry into your home, an attack that occurs in a parking lot, or simple disparity of force.

There is no single simple answer. I am an attorney with an active criminal defense practice in Florida. I struggle with the same dilemma. If you are going to carry or have a weapon for self defense, you need to know and understand the following:

1. The legal parameters on the use of deadly force in your state or anywhere else you may be with your weapon. If you don't have that understanding, then **** may be your best course of action.

2. If you do use deadly force to repel or stop an attack or crime being committed against you or yours, you should have already thought this issue out. Trying to think your way through it in the moment will be impossible. If you haven't, then **** may be your best course of action.

3. You should expect to be arrested and already resigned yourself to that fact. You will not be able to talk your way out of that result.

4. In general I agree with Massad. Be brief and then ****. By the way the 911 call will be evidence too. Most of the police that I know are not jerks, are pretty smart, understand your rights, and want to do the right thing. I think giving the police a direction for their conclusions is good in most situations. I'd much rather do that then let them draw their own.

Get some legal advice before you are involved in an incident. A consultation fee is usually very reasonable and money well spent.