IANAL: Talking to Law Enforcement After a Shooting

The conventional wisdom on the Internet says that, if you ever have to use lethal force to defend yourself, the best response to the police is to say nothing. “Tell them, ‘I refuse to answer any questions without my lawyer present’ and then shut up,” the Internet tells us. Or, sometimes people advise us to say “I was in fear for my life” and then shut up. But is this really the best course of action after a shooting?

The “shut your mouth and say nothing” advice is driven primarily by the belief that (a) you might say something in the heat of emotion that could later be misconstrued as incriminating, and (b) that the police are looking for a reason to arrest you. The first is very likely true; the second not necessarily so.

Disclaimer: I am a paralegal, but not a lawyer. This is not legal advice, and you should check with a lawyer who’s licensed to practice in your jurisdiction.

So, what are the authorities looking for in the aftermath of a shooting? Simply put, they need to answer the questions “what crimes were committed?” and “who committed them?” Implicitly, they’re also trying to figure out who the “good guys” are and who the “bad guys” are, but that’s really just another way of saying that they’re trying to identify what laws were broken and who broke them.

First of all, let’s get that “I was in fear for my life” thing out of the way first. Why shouldn’t you tell the cops this, even if it’s true? I can think of two reasons. The first is that it makes you sound as though you’ve rehearsed a line to get you out of trouble, and like it or not, that’s going to naturally raise the index of suspicion the cops have toward you. Cops are used to dealing with criminals who get all sorts of (mostly wrong) legal “advice” from other inmates, and this line sounds like that. Even though you might have legitimately been in fear for your life, making yourself sound like the crooks who the cops encounter every day trying to game the legal system doesn’t help you.

More importantly, though, in terms of justifying why you used deadly force, this statement is most probably irrelevant. As you’ll recall from our discussion of Ability, Opportunity and Jeopardy, the general standard you’ll likely be held to isn’t whether YOU were in fear for your life. Rather, it’s whether a reasonable person in the same situation, knowing what you knew at the time and nothing more, would have believed there was an imminent and otherwise unavoidable threat of death or serious bodily injury. What you believed doesn’t matter if a reasonable person in the same circumstances would have believed something different.

So, why shouldn’t you just shut up, lawyer up and say nothing? There are a few problems with that course of action:

  • Like it or not, cops get suspicious when a crime victim’s first actions are to lawyer up. And, like it or not, the direction of the investigation may well be decided by those snap first impressions. Coming across like you have something to hide may not, in the end, hurt you, but it’s unlikely to help.
  • If the person who you shot (or stabbed or whatever) doesn’t die, you can bet they won’t shut up and say nothing. They’ll likely say whatever they think the cops will believe that makes you out to be the bad guy. If they’re saying you cold-bloodedly shot them for no reason, and you’re saying nothing, who do you think the cops will think is the “good guy” and who do you think will be the “bad guy” in their minds?
  • If you don’t tell your story, the cops may miss the opportunity to interview witnesses or collect forensic evidence that would bolster your case. If you don’t tell the cops that the suspect fired first until after he’s had a chance to wash his hands, gunshot residue evidence may be lost. Witnesses may disappear into the woodwork unless you tell the cops about them promptly. All of these things will hurt your case.

On the other hand, it’s true that you CAN say too much and dig yourself a hole. And if the cops decide in their minds that you’re the “bad guy”, they’ll work hard to help you do just that. Cops can do all sorts of things, including lying to you, if they decide you’re a suspect and they want you to confess. It’s also true that your perceptions and memories of the event may be garbled in the post-attack flood of stress hormones, and that it may take 24 hours or longer before your brain and body are calm enough to articulate what happened coherently.

So, what should you say to the police in the wake of a deadly force encounter? What can you say that will help your case? Massad Ayoob, who’s been a firearms trainer, reserve police captain, and Police Prosecutor, counsels that you should stick to the following five points when you first talk to the police after a deadly force encounter:

  1. Identify the criminal(s). Say, “this man broke in through my bedroom window and tried to rape me.” Or, “he pulled a knife and said he’d kill me.” One sentence or so that establishes the basics of what happened, and establishes that you are the “good guy” and the person you shot was the “bad guy”.
  2. Express the desire to cooperate with law enforcement. Mas suggests saying, “I will sign the complaint.” This, in his view, expresses to the police in their lingo that you are the victim and not the perpetrator.
  3. Point out evidence. If you see shell casings from your attacker’s gun, or the knife he was carrying, or the glass on your floor from the window he broke, point them out. Forensic evidence can disappear, get lost or be overlooked, and you don’t want to be wishing later that the police had the evidence which would have showed you were defending yourself.
  4. Point out potential witnesses. Fear of reprisals or of “getting involved” means you cannot count on witnesses to come forward on their own. Point them out to the police and make sure the cops get statements from anyone who can corroborate your account of what happened.
  5. Request legal counsel. Only AFTER you’ve done the above four things should you request a lawyer. Mas suggests doing so in a way that reiterates you’re the good guy, using language like this: “Officer, you know how serious this situation is, and you’ll have my full cooperation after I’ve had a chance to regain my composure and to speak with legal counsel.” Then, keep saying that and nothing more…but only after you’ve done all of the other items on the checklist.

I encourage you to read Mas’s article on the subject, which includes examples of what happens when you don’t address all of these issues. As he points out:

Cops are trained to get guilty people to say incriminating things they didn’t really want to say. The same tactics can get innocent people to say things that someone erroneously convinced of their guilt could use against them, particularly when they are interrogated in the hugely stressful immediate aftermath of having faced death and been forced to extinguish a human life. This is why virtually all of us who are involved in this sort of thing on a regular basis advise that the justified shooter should not submit to a detailed interview until they’ve had time to come down from the stress flood and acquire legal counsel.

At the same time, saying nothing means that your story, the truth, is not being told. Cops see so many criminal uses of force that, when they don’t yet know who’s who, it’s only natural for them to assume that the guy on the ground is the victim and the guy standing with the smoking gun is the perpetrator. That’s why, at this moment, it is wise to get across the five points suggested above, and then shut up and wait for an attorney.

Remember: Although it’s true that “it’s better to be judged by twelve than carried by six”, it’s also true that surviving a deadly force encounter only to lose your liberty and your family’s financial future to the jaws of the legal system is something of a pyrrhic victory.

Photo credit: stock.xchng

Comments

  1. Mark Cronenwett says:

    You are most certainly correct, it would vary by jurisdiction. It will also vary by attitude/beliefs of the officer(s). What you would say/do here in Montana would be vastly different than Orange County, Califoria. I have always been told, and have practiced, what Mas is saying, for that just in case hope it NEVER happens scenario.

    • Not just the attitude of the cop, I think, but your attitude affects things as well. One of the good things about Mas’s suggestions is that they don’t leave the cop thinking, “Why isn’t she helping me figure out what happened here?” and “what does she have to hide?”

      I totally agree with you about that last part – I’ve often said that, notwithstanding all the training I’m seeking out, notwithstanding all the skills and equipment I have, if I can say on my deathbed that I never had to use deadly force to protect myself, I’ll die a happy woman. We all hope not to have ANY crisis in our lives – violence, war, natural disaster, personal tragedy. The difference between Col. Grossman’s “sheep” and “sheepdogs” is that if our hope turns out not to be realized and tragedy finds us anyway, the sheepdogs are prepared for it and the sheep aren’t.

  2. Exactly right, Mark. Where you are in this situation is extremely important when deciding what to do or say. My interaction with the sheriff/police here would be worlds different than I could expect in New York City – or most other places, unfortunately.

    A good friend, who is an attorney, has advised many of my self defense classes to make an appointment with a lawyer in their own town and frankly discuss the potentials of a self defense shooting. The lawyer knows the local laws and attitudes of the police, and should be familiar with the process and outcome of any self defense cases in the area.

    Not all attorneys will be familiar with such things, and not all will be self defense friendly, so it may take some effort to find one who will be of any help. But when you do, he/she will be a valuable resource from then on – and, God forbid, if you really need a lawyer.

    In most places, it is also a good idea to get to know your local “officers” and understand for yourself how they operate and how they see ordinary people who prepare to defend themselves. Volunteer to “ride along” if at all possible, and join a local disaster group, posse, search and rescue or other such community activity where you will interact with police and sheriff at times. When they already know you as one of “the good guys,” it can’t but help.

    This would be especially important for people who are new to shooting or who move into a totally different part of the country and have no frame of reference except the generic “advice” from the internet or their own circle of friends and message board acquaintances.

    • Doing a ride-along or two with your local police department (and other emergency agencies, if they allow it) is something I think everyone should do, and not just for the reason you mention. Apart from getting seen and known as a “good guy”, the cops on the street are a great source of insight about who the predators are in your community, what they’re up to, where they congregate, and all sorts of other useful “intel” about what the threat landscape looks like.

      The interesting thing I’ve found from my ride-alongs — I’ve done two and am in the midst of trying to schedule a third — is that while police chiefs in many parts of the country are quite often vocally anti-gun and opposed to an armed citizenry, the beat cops on the street overwhelmingly seem to support arming “the good guys”. Even here in gun-hostile California, this seems to be true.

  3. I agree. Having been on the seen of shootings and having investigated a couple of LE shootings for the department, I’d say that most cops are trying to do the right thing. They want to put the bad guys in jail.

    Something else that is rarely discussed is that we cops are pretty good at figuring out what happened, even if you don’t talk. If I have a resident with a CCW license who lives in my city and has no criminal record saying she was robbed and a dude who’s bleeding from a gunshot wound who has active warrants and 14 prior convictions for armed robbery…well, you really don’t have to be a master detective to guess what happened.

    I prefer neither the “spill it all” or “I’m not saying anything” strategies. The advice in the article provides a good balance. With that said, it is definitely better to err on the side of saying less than saying more.

    • Thanks for your comment, Greg! I really appreciate the LEO perspective on these sorts of issues. And, certainly it’s been my experience that the vast majority of cops go into law enforcement to make a difference and to make their communities better. The bad apples seem relatively few and far between, though I’ve certainly encountered one or two in my time.

      And, yes, I agree – the balance between saying too much and not enough is a tough one sometimes. Erring on the side of “too little” will probably hurt you less, on average, than the reverse situation, but there are definitely times where saying nothing can come back to bite you.

  4. George Michaels (alias) says:

    My Wife asked me to read the article and chime in.

    Jurisdiction is the key to how you are going to handle the situation. Keep in mind that Mas’s advice is based on primarily an east coast career.

    I am NOT a Lawyer, I dont play one on TV and I didn’t stay at a Holiday Inn last night. The following advice is worth exactly what you paid for it, though I will say, Im still here, in one piece and free after following it.

    I am a cop, specifically a Master Peace Officer in Texas ( a quick sidebar before we get to the southern hillbilly thing, there are two states with the highest proficiency requirements for LE, one is California the other is Texas…. and Texas isnt going broke). I am going on 15 years of service, I am the firearms and tactics instructor for the agency. I also run the raid team and advise on use of force issues in Texas. Lastly I instruct womens groups on how to win lethal force encounters.

    Having investigated LE shootings, citizen shootings, and been in a few myself here are my observations.

    1. Know who the prosecutor is in your area, this goes a long way to understanding how they are going to pitch things to a Grand Jury.

    2. Know what the law is in your area, this isn’t to spout it at the cop, it’s to know where you stand right off the bat. Knowing you’re on solid ground eliminates a lot of the internal debate that will get you killed.

    3. Be honest and give a clear explaination of what happened, dont make things up and if you aren’t sure dont guess. I would rather hear ten “Im not sures” than one “Im sure” that contradicts the physical evidence on scene.

    3. Plan on losing your piece for several months (mine didnt get back from the lab last time for over 6 months and that was with a Texas Ranger speeding things up)

    4. Be psychologically prepared to get crucified in the press and on the comments sections of the papers by folks that dont have your skillset. Dont sweat the idiots, they dont matter, know you did right.

    5. On preparedness, get some force on force training, shooting paper isnt anything like shooting people. And playing both sides of the scenario will go a long way to deal with the psychological aspects of deadly force. It also will improve your survivability 100 fold.

    6. Everything you know up to the point you dropped the hammer is usable to explain your position. Things learned afterwards are not.
    Learn pre assault indicators, know the dirtbags in your area, chek the websites that list sexual preditors, see if your local jail lists active warrants with pictures. ALL of the factors known goin in to the event have a direct impact on how the event is handled and viewed at a later time. Force discrepencies like superior numbers, having to move a small child, size disparity all come into play.

    This will not be like a movie and over in 2 hours. But it also doesn’t have to ruin your life either. Remember that your responsibility is to you and yours first.

    • Thanks for this! All good advice, and you’re right that reality isn’t like television where everything’s neatly resolved in 48 minutes. I’ve worked in the California court system (as a paralegal and mediator) and I’ve learned THAT lesson firsthand many times.

  5. Glenn says:

    If Oklahoma City Pharmacist Jerome Ersland had followed your suggestions, he might be a free man today.

    • I suspect there are more than a few people whose encounters with law enforcement following deadly force incidents could have had much better outcomes had they known how to respond to the police. It’s true that if one doesn’t survive the encounter, the legal stuff won’t matter, but it’s also true that surviving the encounter is only half the battle.

      Thank you for reading and commenting!

Trackbacks

  1. […] position has Massad Ayoob, the Armed Citizen’s Legal Defense Network and other well-respected and experienced […]

  2. […] to say you should “shut up and say nothing” to the police after a defensive encounter. I’ve written before about what to say, and why to say it, after a self-defense encounter. But while you’re still […]

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