What you need to say, do and not do in a defensive shooting
It’s the thing you never wanted to happen, but it has. The palms of your hands are sweaty. Your heart feels like it is beating out of your chest. Your body is shaking. You may urinate or defecate on yourself, as the human body evacuates all things from it not needed to win a life-or-death fight.
You have fired your weapon in self-defense, and someone has been shot. But whether you realize it or not, the fight isn’t over. You may have come out victorious, surviving physically, but the legal fight has just begun.
In what experts call “fight or flight” the human body goes into survival mode and clear thinking might not be possible. But having a plan in mind of what steps to take if this situation happens is one of the most important things you can do as a legal gun owner. Because the actions you take in the moments right after the shooting could be the difference between you being sent to prison or going home to your loved ones in one piece.
To assist readers in making what could be a life-changing decision immediately following a defensive shooting incident, the Crusader gathered information from a variety of legal experts on citizen- and police-involved shootings for this report.
All encouraged legal gun owners, in addition to maintaining regular firearms training, to have a good insurance company that specifically deals with gun owners’ rights, and to have a retainer for a lawyer on standby.
Attorney Terry Johnson, from Firearms Legal Protection, is a criminal defense attorney who for years has been helping people involved in self-defense shootings. Based out of Farmington, Michigan, Johnson says too many people make mistakes after they’ve been involved in a shooting that have cost them time in prison, money and even their own lives when they were mistaken as the offender.
“The first thing you want to do when the police arrive on the scene is make sure you don’t have anything in your hands,” Johnson said. “There have been incidents of people being shot by the first officer responding to the scene because they couldn’t tell who was the threat and who wasn’t.
“The officer is responding to a call of shots fired. You standing there holding a gun is not a good start.”
Just as law enforcement officers have to explain their actions with every use of lethal force, so will you. But you will not have the benefit of unqualified immunity. You will not have a union or city attorney working on your behalf. So, you had better know what you are doing.
Johnson said police may press you for a statement. However, this is not the time for you to start talking. He added you can’t remember every single incident that led up to the shooting. That is what the investigation is for.
“We always believe we can talk our way or explain our way out of things,” Johnson said. “If you just shot someone, the odds of you not going to jail temporarily, even when you were in the right, are slim.”
Johnson said spending a few hours or even a night in jail initially should be expected as the police conduct the investigation. He said too many people get caught up in the “but I was right” argument.
It is why Johnson said knowing your legal rights, how the legal process goes, and having a plan that you have rehearsed over and over again is something every legal gun owner must know.
“Think about a police officer who shoots someone in the line of duty. They get to have 48 hours, that’s at least two sleep cycles before they have to come in and make a statement and when they make that statement, they do so along with their attorney or union rep,” Johnson said. “So why wouldn’t you do the same thing? It’s your legal right to do it, so do it.”
Be the First to Call 911
Coming in second or third place is not bad if you are running in a cross- country event. But if you’ve just shot someone, you better be the first to call 911 if you want to be seen by the responding officers as the victim.
“While it may seem counterintuitive for the good guy to think the bad guy will call the police after they just tried to kill you, you must realize the bad guy may understand the law better than you,” says Massad Ayoob, considered the foremost expert in the country on civilian and police use of force.
“Whoever calls in first gets to be the complainant. That’s how the system is geared. Whoever is complained about is seen as the suspect. So, it is critical for you to be the one to call 911 and state whatever the attacker(s) did to you.”
When calling 911, experts say be brief. State the location and tell them someone has been shot and to send police and paramedics and then hang up the phone. Never say, “I just shot someone,” because then the police will come looking for you.
“Many people don’t know that when you dial 911 in the United States, as soon as it starts ringing it is also recording,” Johnson says. “I can’t tell you how many times people have been busted because they are talking as the phone call to 911 is ringing and recording, and they say things they shouldn’t be saying.”
The second call you make should be to your attorney, Johnson said.
Say Only What Needs to Be Said
The 5th Amendment protects you from incriminating yourself. But time and time again, citizens get themselves in hot water from mundane things like traffic tickets to more serious situations like shootings because they talk to the police, thinking they are in the right to have done what they did.
Nothing could be further from the truth says John Correia from Active Self Protection, whose YouTube channel is one of the most popular and best online sources for information about defensive shootings. The Active Self Protection YouTube channel has loads of different scenarios in which Correia gives explanations on what went right and what went wrong in a situation.
“The police are going to investigate anyway, so let them do their job,” Correia says. “There is no need for you to start yapping. We see on the channel all the time people taking actions or saying things in anger after the deadly threat was over that cross the line and get them into trouble.”
Attorney Johnson agrees. He says nothing good can come from you talking to the police at a time when you are emotional and not thinking clearly. He added that talking to police without an attorney is an even worse idea.
Ayoob’s expertise in the area of civilian and police use of force requires him to travel the country speaking on the topic, and he has testified in dozens of criminal and civil cases on the subject. He has a bit of a different take than Johnson but agrees that saying less is more.
Speaking with Marty Hayes of the Armed Citizens Legal Defense Network in November of last year, Ayoob laid out what a person can say when they are first contacted by police. Back in the 1980s, Ayoob came up with a five-point checklist of things that need to be established.
“The first thing you have to do is establish the active dynamic. Tell the police or 911, ‘this person attacked my wife or this person was trying to kill me’,” Ayoob began. “Second, tell the police you will testify against the person who attacked you. It reinforces the first point that you were the intended victim and you were defending yourself or others.
“Next you want to point out the evidence. Preservation of life takes precedence over preservation of evidence, so shell casings, where a weapon is found, or video evidence can all be accidentally moved by police and paramedics responding to the scene. Point them in the right direction.
Ayoob adds, using that same thought process, “you want to point out any eyewitness who might be able to help you. Usually someone or a lot of people saw what happened but are afraid to speak up. You can even ask people before the cops get there, ‘did you see that?’ That puts some people at ease and they may come forward on your behalf.
“Finally, it is at that point that I would go with telling the officer you will answer no further questions until you have spoken with your attorney.”
Ayoob believes being respectful when telling the officer, you do not intend to answer any further questions is important to determining how they label you. Many times, the media reports a person as “not cooperating with investigators,” when often times it is just people exercising their legal right to counsel, according to Attorney Johnson. Keeping the focus that you are the victim should be your primary goal.
Ayoob added this may include requesting an ambulance for yourself if you were injured. Other experts suggest always requesting an ambulance because you can go into shock, suffer a panic or heart attack after going through such an emotional ordeal.
No Posting on Social Media
It is no secret that we live in a digital media world and people are quick to post every aspect of their lives on social media platforms. However, posting pictures of your grandmother’s 100th birthday party won’t get you thrown in prison. Talking about how you shot someone can. Do not talk about the incident, even if you were cleared.
Attorney Mark Victor is not only against people saying anything to police if involved in a shooting, but he says you shouldn’t be saying anything to anyone, including family and friends.
“All of those people are people who can be called into court to testify about what you said to them about the incident, with the exception of a spouse,” Victor said. “Posting your thoughts on social media is like literally telling the entire world, and your posts can be used as evidence against you.”
Keep Your Attorney’s Information on Your Person
When you need an attorney, you won’t have time to look up one in a phone book. In the heat of the moment, you will not be thinking clearly so experts recommend having your attorney’s phone number locked into your contact list. As an additional backup, having a physical copy of your attorney’s card in a purse or wallet is also a good idea in case the phone is lost or damaged during the encounter. This may also allow you to have a friend or family member make the call for you if they are on the scene.
Johnson and Victor agree that the fight for your exoneration is going to be just as difficult as the life-or-death situation you just survived. They offer this final advice.
“Remember, the Miranda Rights says it all: ‘anything you say, can and WILL be used against you in a court of law.’ So, the most important thing you can say is nothing at all,” Johnson said.
“I see no downside to saying, ‘hey I want my lawyer, I got nothing to say’,” Victor told Correia on an Active Self Protection Extra episode.
“That’s what the police get advised to do when they are involved in a shooting. That’s what the police advise their kids to do. So, if it is good enough for the police and their kids to do it, it should be good enough for you as well.”
Thanks to the generosity of funding provided by The Field Foundation of Illinois, Inc. in producing this article.