Shooting in Self-Defense

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You’ve thought about how to protect yourself and your loved ones. You own a self-defense firearm and have learned to use it safely and effectively. But have you thought beyond the dreaded kill-or-be-killed moment? Do you know what to do beyond dialing 9-1-1? Do you know how to protect yourself within the legal system?

The legal system isn’t your friend or enemy. It’s made to administer justice, which ideally means correctly determining fault and punishment according to law. Still, the people involved can make mistakes. In a worst-case scenario, misleading or false evidence can result in charges being filed against a person who only acted to defend his or her life.

Some attorneys have developed plans, legal opinions, and advice for how to deal with such circumstances. Here we’re going to go through a generalized situation and include the advice from two legal experts in this area of law. No two self-defense shootings are the same, and laws vary from state to state. This advice is only designed to prepare you for safeguarding your rights within the legal system. No one can give you a detailed and unequivocal list of what to do. There are too many variables for that to be possible.

The 9-1-1 Call

Okay, you've been forced to shoot. Whatever the circumstances—if the threat has been abated—the first thing to do isn't to dial 9-1-1, says Sean Maloney, an Ohio-based criminal-law attorney who founded Second Call Defense, a private company that provides legal support to people who've been forced to defend their lives.

“You need to call 9-1-1 promptly,” says Maloney. “However, before you call, take a moment to calm yourself. Breath slowly and deeply. Collect your thoughts as best you can.”

Maloney advises this because the moment you are connected to 9-1-1, every word you say will be recorded. This is the beginning of the police investigation. Every word you utter and every sound heard in the background can be used for or against you in court. You should always be willing to cooperate with the police, but you should be sure that your emotions and understandably excited state of mind don’t cause unforeseen legal troubles for you.

Maloney says, “While the 9-1-1 operator might be a nice person, he or she is not your friend at this moment. Operators are trained to keep you on the phone and prompt you to answer as many questions as possible. Given the adrenaline rush you’re no doubt undergoing, you should be careful. While you must provide basic information to bring medical help and law enforcement, the less you say right now, the better.”

According to Maloney, you should give your name, where you are, a very basic description of what happened (a few sentences), a request for an ambulance and the police and a description of yourself. Maloney says your phone call should go something like this:

Operator: "9-1-1. What is your emergency?"

You: "Operator, my name is [your name]. I'm at [street address]. I was attacked and feared for my life. There has been a shooting. Send an ambulance and the police. I'll be at [your location at the address]. I'm [your physical description] and I'm wearing [describe your clothing]."

Maloney says, “Now end the call. The operator may need you to repeat the address or other information. But you should avoid providing details. Explain that you are upset and feel sick and that you need to hang up. This is hard to do, but do it.”

Andrew Branca, a Massachusetts-based attorney and the author of The Law of Self Defense, disagrees with hanging up the phone in most situations. He agrees with Maloney’s advice on what to say and not say to the dispatcher, but says, “The 9-1-1 operator will want to keep you on the line. This is typically a good idea. Instead of breaking the connection—as the dispatcher will likely be talking to responding officers and so can help keep you safe—tell the dispatcher that you need to put the phone down. Don’t hang up. In most situations you should let the phone keep officially recording what’s going on.”

Maloney wants a person to end the call with the dispatcher so the person can next call Second Call Defense. If they’re a member, they'll have an emergency number that will immediately get an attorney on the line who will work to calm them down and safeguard their legal rights.

Branca, however, makes the point that most people don’t know a defense attorney who can help in this situation. He says, “An attorney who specializes in anything other than criminal defense can’t help you. It is smart, however, to call a friend, spouse, parent…whomever you know who will answer the phone and will make other calls on your behalf. This way, if you’re taken into custody, you’ll have someone working for you. In most cases you can do this with another phone.”

Neither opinion is wrong, of course, and both attorneys agree that if there is something the police should be aware of that can catch a bad guy or prevent further harm, you must give that information. The point is that you need to think about and prepare for what is appropriate for you in different situations.

Before the Police Arrive

We’re assuming that you stayed on the scene. You might not. If you believe your life is in danger where the self-defense situation took place, you may legally leave. If you do flee, call 9-1-1 and explain why you fled as soon as possible.

Whatever the case, if possible, you should not have a gun in hand when the police arrive. Remember, the responding officers will also have adrenaline pumping and will be worried about their own lives. Your gun should be holstered or placed in plain sight some distance away. Your hands should be empty, open and raised. You should have already given your description to the police dispatcher, but beware, on a few occasions in the heat of the moment an officer has mistakenly thought an armed citizen’s description he heard was a description of the bad guy.

If you are still in fear for your life, or if you are holding a criminal at gunpoint, you might have to remain armed. If you have to hold someone at gunpoint, make sure that the person calling 9-1-1 says this simply and clearly over and over again.

Depending on the situation, it might be better to simply let the criminal escape and give the police whatever information you can to help them catch the suspect or suspects. You’re trying to survive a violent encounter and to keep the bad guys from harming others; you’re not a Hollywood action-movie hero.

As you wait for the police, don’t touch anything. Try to get yourself under control. Some contacted for this article advised that a person who acted in self-defense might use a camera to photograph the scene. If you have enough composure to do that, time and can do so safely, Maloney says this can be beneficial. Things within a crime scene can be moved or overlooked as people move around and police respond. Keep in mind, however, that your cell phone will likely be confiscated.

The Police Arrive

One school of thought says you should cooperate fully and answer any and all questions put to you by police investigators. The problem with this approach is you’ll still be under the affects of adrenaline. In this situation, you may very well get the facts mixed up or use language or display emotions in front of the police that could later be used against you. As a result, the attorneys interviewed for this article said you should be overly polite but very careful how much you say.

When you speak to the officer(s) keep it as short as possible, said Maloney. Here is an example of what Maloney says you should say to police:

"Officer, this person attacked me.

I will sign the complaint.

Here is the evidence [whatever tool the assailant used to attack you].

These are the witnesses [if there are any].

You will have my full cooperation within 24 hours after I meet with my attorney. Until then, I wish to assert my Fifth Amendment right and remain silent."

Some have argued that a person, to prevent a misstatement, should immediately invoke their Fifth Amendment rights. Branca disagrees. He said, “It is not advisable to say nothing. If you do that you should expect to be immediately handcuffed, transported to jail and locked in a cell.”

If you’re taken into custody, it might be hours before a lawyer is available. In the meantime, criminal charges might be filed. “The police will be looking to assign guilt,” said Maloney. “They have a crime to solve.”

“You shouldn’t feel like you have to speak. Most people don’t realize,” said Branca, “that when a cop has to shoot someone they’re immediately whisked away. It is standard procedure not to have an officer talk. This is to protect the officer from making a misstatement or letting their adrenaline talk for them. You should do the same.”

Meanwhile, Maloney said, “Officers are trained to use a person’s excited state of mind to get them to talk. This is understandable. They’re trying to solve a crime. The thing is, people often want someone to tell them it’s okay. A cop might say they understand how a person feels just to keep them talking at a time when they’re not fully in control of themselves. This is why you need to be polite and helpful, but to tell the officer that you’re going to wait to consult legal counsel before you say anything more.”

Maloney added, “I worked on a case once where someone was forced to use a firearm in defense of his life. Minutes later, while his wife was on the phone with a police dispatcher, this man began screaming on the front lawn. He didn’t know what he was saying. He was yelling things about the perpetrator that were nonsensical. He was out of his mind. Nevertheless his words were used against him in court. It took a lot of work to get those mad statements tossed out.”

Should You Give Permission to Search?

The officers will have the right to search the scene where the event took place for evidence, but they don’t have the right to confiscate and search computers, filing cabinets, and so on without a warrant.

Branca says, “Though in most cases I don’t see how giving permission to search can harm you, there is no reason to give up your constitutional rights, such as your Fourth Amendment rights.”

Maloney agrees with this opinion and says that things get very hypothetical as to why a person should not consent to a search. Basically, it’s easier to control evidence in a particular case if a person politely declines a request to search. In this way, for example, evidence obtained with an illegal search is easier to keep out of the courtroom. This can be a factor in specific situations if a prosecutor is trying to paint a grim picture for a jury of someone who is claiming self-defense.

Will You Be Taken into Custody?

Every self-defense situation is different. It is impossible to predict how local authorities will react to a particular situation. However, you should mentally and emotionally prepare to be arrested and taken to jail. In some jurisdictions, the police will arrest anyone who shoots another person regardless of the circumstances. So don’t be alarmed if this happens. Once a police officer makes the decision to arrest you, there is nothing you can say to avoid going to jail. Don’t argue. Don’t try to plead your case. Just quietly cooperate with all officer’s commands, explained Maloney.

Branca added, “I advise people who are being arrested for a self-defense shooting to ask to be taken to the hospital. Trust me, it’s better to spend a night in the hospital than jail.”

The attorneys interviewed for this article were mostly concerned with a person somehow incriminating himself after he’d lawfully been forced to defend himself or someone else. They stressed that learning what to do and how to behave if you’re ever forced to shoot is a part of learning to defend life.

Here are a few resources that can help you deal with a worst-case scenario:

• Second Call Defense: This is a membership organization that offers 24-hour legal and financial protection for gun owners in all 50 states if they are forced to defend themselves or their family with a firearm. Membership includes the NRA-endorsed self-defense insurance. You can find out more here.

• Self-Defense Insurance: Most people don't realize that many homeowners' policies don't cover acts of self-defense. NRA-endorsed Self-defense Insurance bundles both Self-defense and Personal Firearms Protection coverage and provides civil defense and liability and other needed coverage. You can find out more here.

• Self-Defense Laws: The Armed Citizens Legal Defense Network has a useful booklet titled "What Every Gun Owner Needs to Know About Self-Defense Law." You can download it here.

• Self-Defense Book: Andrew Branca's book "The Law of Self Defense: The Indispensable Guide to the Armed Citizen" is a comprehensive resource for navigating this part of the legal system.