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Massad Ayoob on Guns

Want to Comment on a blog post? Look for and click on the blue No Comments or # Comments at the end of each post.



Massad Ayoob

WHAT TO SAY AFTER A SELF-DEFENSE SHOOTING

Friday, July 14th, 2017

Conventional wisdom has long held that after a self-defense shooting, the shooter should say nothing to police except, “I want a lawyer.”  The problem with that is, it’s exactly what genuine bad guys say to the police and is highly likely to lead to an arrest, which sets the tone for how the criminal justice system is going to handle things thereafter.

Veteran street cop Greg Ellifritz is, in my opinion, one of the sharpest of today’s trainers, and he takes a more practical approach, as I do.  See it here in his excellent blog, which I think should be regular reading for anyone serious about self-defense.

The commentary from his readers is interesting. Some is on point and some, I think, not.

Here, I’m interested in YOUR thoughts on the topic.

47 Responses to “WHAT TO SAY AFTER A SELF-DEFENSE SHOOTING”

  1. Gary Says:

    Mas,

    I am a regular reader of Greg’s blog and I attended a seminar you put on for the Buckeye Firearms Association about a year or so ago. I agree that saying nothing–which is your right–will probably end up with you spending time in handcuffs and in jail while the police try to sort out what happened. They will question witnesses to get the needed information. However, what happens if there are no witnesses. Now the only source of information is you and the physical evidence. You are the one that will need to put the physical evidence into context. That context will determine whether you spend many years behind bars or just a few hours. I think you should provide essential information at the time–point out evidence, witnesses, etc. It is also important to let the authorities know that you are the victim, not the criminal. It is important that you indicate your willingness to cooperate so it doesn’t appear that you are trying to hide something. I also think it is smart to delay giving any detailed statements until after you have a chance to consult with your attorney. Saying nothing is your right, but expect to spend time behind bars as a result instead of going home that night.

  2. Fruitbat44 Says:

    I am a 100% armchair gunslinger these days. But in the past I have carried weapons. I realise my past concerns may not be typical, but the advice given in the article sounds good to me. Don’t antagonise the police, make sure that they know that you’re the good guy.

    Even if, God help us, it turns out the shoot wasn’t righteous after all, the water pistol scenario might seem unlikely, but it or similar is far from impossible.

    The only thing I can add is, and this is stating the obvious, Tell The Truth. Be honest about your feelings and fears during the encounter, and resist the temptation to embroider your account to put you in the best light possible.

  3. WR Moore Says:

    There’s a couple of very important items mentioned. Being non-confrontational is a big thing, you don’t want to create a negative image. The other item is that if you want to remain silent, you must invoke that right rand the desire for an attorney rather than imitating the legendary cigar store statue.

  4. Mike Says:

    I’m hypertensive, so if, god forbid, I am ever in this situation I’ll pretty sure I’ll need a ride to the ER. Oxygen mask will keenthe questions at bay.

  5. Roger Willco Says:

    I agree with the article and Massad Ayoob’s Five-Point Checklist. But being an armed citizen is pretty tough.

    Let’s see, we have to be in condition yellow all the time, never in condition white. We have to practice our gun-handling skills AND know the laws of our state. During a defensive shooting we will have to think like a lawyer. How will this look in court?

    We have to account for every shot we take and the final resting place of each bullet, no matter how erratic its path. During the lightning-fast encounter we have to draw our guns quickly, and that gun better not be visible before we draw it. We better not take it out unless we see a threat, “In the Gravest Extreme.”

    There is a good chance our deadly encounter will be at night, under low-light conditions. We will be acting under stress. We may have to fight against multiple attackers. If these attackers are terrorists, we may be using handguns against their long guns.

    We have to shoot at the center of the upper body, even while we may be moving and the perpetrator(s) may be moving. Are there innocents behind the perpetrator? Do they have a hostage? Lots to think about in the brief moments of a stressful time.

    I’m sure others can add to the concerns I’ve listed above. Also, I’m not even going to list the worries we will have when the police show up. And after that it is time to do battle in the courts. If a gun owner is responsible and well-trained, the prosecutor can say he was looking to be involved in a gun fight. If a gun owner is not well-trained, the prosecutor can say they have no business walking around armed. They need more training.

    It’s easy to see how some people would choose to go unarmed. But I just hate the idea of being defenseless in the face of evil.

  6. Jim L Says:

    You should watch this: https://www.youtube.com/watch?v=d-7o9xYp7eE

  7. Dave (the Liberal, non-Uncle one) Says:

    I agree with the article that it is far worse to say too much than to say too little. I also agree that “Massad Ayoob’s Five-Point Checklist” is pretty good for the reasons stated in the article, but I do have this concern: It’s a lot harder to stop talking once you start talking than it is simply not to talk at all (and that’s pretty darn hard in itself) and that’s especially true when you’re in an excited/traumatic state and when experts in getting people to talk — LEO’s — are the ones talking to you.

    For example, when pointing out the physical evidence, let’s say that the officer’s going along with no push-back or apparent aggression as you point out items of evidence A, B, and C. And then when you get to D he/she asks a question: “Y’know, Mr. Jones, I see that shell casing you’re pointing out but I don’t understand how it could have got over here. How do you explain that?” Well, you know exactly how it got there and that it’s consistent with your claim of self-defense but you can also see how it might not look like that without additional explanation. After cooperating that much are you going to have the mental fortitude to say, “Well, officer, I’m just pointing stuff out, but I’m not going to discuss it without my lawyer present, but can I show you another couple of things?”

    Unless you’re absolutely sure that you can get through 1-4 without saying anything more than is the absolutely minimum needed to accomplish them without explaining them (and note that 1 and 2 aren’t invitations to _explain_ those things, just to say them, exactly as Mas quoted them, without saying anything more), then you’d be better off just not saying anything at all.

    In addition to that, I’d change #5 to simply say, “I’m not going to say any more unless advised to do so by counsel.” and to say that whether or not you think that you’re going to be a suspect. Even if you’re fully educated and utterly up to date in all the nuances of self-defense law in your particular jurisdiction and are objectively aware of all the facts and how those facts are going to look to the officers and the court, your reasoning process at that point in time aren’t apt to give you the most careful and objective evaluation of those matters. Presume that you’re going to be a suspect and let your lawyer make the decision what and how to do next.

  8. Mas Says:

    JimL: Re-watch Professor Duane’s video carefully. Take notes. Virtually every example he cites is someone who was in fact guilty of a crime. What works for protecting the Constitutional rights of the guilty is sometimes 180 degrees opposite of what is needed to exonerate the innocent.

    Ayoob’s Law Number Ten: If a lawyer for guilty men gives you a guilty man’s defense, you’re probably going to end up with a guilty man’s verdict.

    Roger Willco, you’re right: it’s complicated. It’s why I don’t teach the KISS principle (Keep It Simple, Stupid). It ain’t simple, you ain’t stupid.

    That said, I still carry the gun. Ayoob’s Law Number Eleven: There is no appeal from the grave, and often no reversal from the wheelchair.

    Liberal Dave: Don’t sell yourself short. If you had the self-discipline to win a gunfight against a homicidal criminal, I think you have the guts and the brains to stick to the five-point checklist and remember the fifth when questions get detailed: “Officer, you’ll have my full cooperation after I’ve consulted with legal counsel.”

  9. Spencer Says:

    Out of all the recommended post-shooting interactions that good guy armed citizens should have with the police, what Greg Ellifritz and Massad Ayoob (and Grant Cunningham) suggest are by far the best in my opinion. Saying nothing to the police right after such a terrible incident leaves the citizen’s actions open to unpleasant interpretations that could get him or her sideways with the DA’s office–and a grand jury.

  10. Southener_ Says:

    My USCCA card says to say only “This man tried to kill me” – “I’m willing to sign a complaint” – “There is his weapon” – “Those people saw the attack” – ” Officer, I will cooperate 100%, but first, I need to speak with my attorney.” – or the relevant parts.

    Bottom line, say as little as possible and provide ZERO explanations about anything without an attorney.

    Mas is right, damnit, as usual…

  11. Walt Davis Says:

    Mas. Was fortunate to be in your Armed Legal Defense class. Also fortunate to be in the same city as Greg Ellfritz. I read Greg’s articles every day. I als study the notes I took at your class to stay prepared if I end up in a self defense incident. Stay safe.

  12. Dennis Says:

    I would like to point out that I’m NOT the “Dennis” that commented in the link to call a friend to come to the scene to help you before calling 911. That is such bad advice it almost deserves a thread of its own.

    I agree with what the author wrote. It’s very important to tell the officer the things that led you to use deadly force, without embellishment (don’t try to paint a picture of events worse than what actually happened). These things will probably be burnt into your mind and not likely change as time passes. Making sure the police see you as the victim early on does much to set the direction of the investigation. After that, respond to the officer only that you have just survived an extremely traumatic event and you need time to collect your thoughts. If the officer insists after that, respectfully ask him if there is a possibility you will be charged with a crime and if so, is it not customary to read you your Miranda rights.

    Something that I’ve not seen mentioned is the importance of “friendly” witnesses. If you have the presence of mind, try to keep those who actually saw the events go down to stay, or at least to write down their names and phone numbers. They have a habit of disappearing, never to be found later.

  13. Lew Says:

    When the police arrive I would not hesitate to let them know that “the man who broke into my house scared the hell outta me, he was gonna kill me.”
    “I’m sorry but I think I’m just too scared and upset to be of much help, may I go to the hospital now please?”
    As I mentioned on an earlier thread, explaining your Constitutional rights to the officer could escalate the situation. That could lead to you being the only suspect the police can see.

  14. BabySharkEsq Says:

    As an attorney, gun owner, and supporter of the second amendment, I strongly agree with Mas’ five point checklist as cited in this blog post, and I think Mr. Ellifretz raises some good thoughts as well. I also fondly remember LEARNING Mas’ five point checklist when I took LFI-1 in Dunbarton, NH “back in the day!”

    On a purely personal note, I am also thrilled to have re-discovered this blog. 🙂

  15. Steve Perez Says:

    I think the points mentioned are well stated as they allow you to provide preliminary information since detail talk can trip you up later. Also consider that most police departments realize the stress in a shooting and only require basic information from the officer at the time. The detail report per policy is usually about 2 days later. Above all be corteuous but firm in you responses

  16. Tom606 Says:

    I would use a delaying tactic such as appearing frightened or disoriented, until my lawyer shows up. If the police insist on some statement, I would say, “He/she was going to kill me, I don’t want to die! I had to shoot him/her.”

    Memorize simple phrases and don’t give out details, which you may not remember later and possibly contradict yourself under interrogation.

    I would also recommend signing up for Bill Clinton’s and Chuck Schumer’s classes teaching students how to cry or tear up on demand.

  17. Doug in Durham Says:

    Having attended MAG-40 (twice!) I’m all aboard with the “say little” approach. But I’ve heard a couple of recent (May-June) podcasts by Andrew Branca, wherein he seems to be moving a bit away from “say little”. (Going from memory), he is now running a fairly advanced simulation in his classes, including an “interacting with the police” segment. Even under the stress of a simulated event, some people just can’t shut up; once they start talking, they keep talking and saying things they shouldn’t. So I think he’s coming to believe that some people should just ask for a lawyer and shut up. Which I think is pretty much what Mr. Ellifritz is saying; if you can rein in your tongue, “say little” is definitely the best option, but some people would be better served by saying nothing.

  18. Mas Says:

    Just a couple of points, folks…

    Don’t ask to go to the hospital unless you actually ARE injured, having an attack of something, etc. If the emergency room determines you’re just fine, cops and prosecutors see that as avoiding questioning because you’re guilty…we call it “incarceritis.”

    I would strongly disagree with pretending to be disoriented…cops and juries alike are not friendly to people who become disoriented and shoot other people. It gets in the way of the “reasonable man doctrine,” which is one of the innocent defendant’s best friends in such cases, because “disoriented” is the opposite of “reasonable.”

  19. Tam Says:

    Gorillafritz’s blog should be a regular stop for anyone who wants to increase their cluefulness on self-defense topics.

  20. Steve from MA Says:

    I guess I’m the only one here with the metaview that we are all saying, essentially, we can’t trust the police or the criminal justice system. Has this always been the case? If so, why and how? If not, how did we get here? These people are paid by taxpayers to uphold the law and regard everyone as innocent until proven guilty. Using subterfuge or pressure tactics to win a case against an innocent citizen suggests those professionals have skipped a few ethics courses. Maybe that’s focus for repairing current miscarriages of justice.

  21. glenbo Says:

    Texas Law Shield tells their members to call 911, tell the operator that they are the victim of a violent crime, please send ambulance or medical help, please send police, then hang up and call Texas Law Shield. We have a wallet card to show cops when they show up, then the cops know they can’t continue to ask questions and badger someone, so they will, hopefully, just do their job.

  22. LittleBill Says:

    As in most situations in life, the ‘middle way’ is better than either extreme:

    Don’t clam up and say nothing: it makes you look guilty.

    Don’t blab on and on: you might end up saying something that could be mis-interpreted against you. As much as possible, slow yourself down and consider your words before saying them: always assume that the worst possible spin might be put on them.

    If you’re the type who tends to talk when stressed, rehearse ahead of time the 5 things you want to say; and rehearse the ‘6th step’: of *shutting up* after that.

    Depending on where the shooting takes place, the same event can be interpreted in radically-different ways. A ‘conservative’ jurisdiction where the citizen’s RKBA is respected, vs a ‘progressive’ jurisdiction where a good guy with a gun is automatically seen as a vigilante looking for his chance to prove himself in a gunfight.

    This is likely something you can’t know at the time; so ‘erring on the side of caution’ and ‘assuming the worst’ seems like the best bet: assume that everyone you speak to will be seeking to put the worst possible spin on your statements.

    Cops are people too. All of us humans have an intuitive ‘radar’ that ‘tells’ us things we don’t ‘pick up’ on the conscious level. Clamming-up may not give the responding Officers a chance to ‘sense’ your innocence. Talking too much or trying too hard to put your spin on the situation may give them the impression that you’re trying to cover something up: “Methinks he doth protest too much.”

    Keep to the middle ground: stick to the facts, say the ‘5 necessary things’; then resist the urge to say any more. In all your interactions— no matter how you’re being treated— remain respectful.

    And finally: keep that ACLDN card in your wallet.

  23. Two-gun Steve Says:

    Dave (the Liberal, non-Uncle One): How about filing a suit that maintains that arbitrarily putting a shooter (especially a prima facie self-defense shooter) in handcuffs and behind bars is a violation of constitutional rights? Imagine putting Josh Randle (Steve McQueen) from “Wanted Dead or Alive” or Lucas McCain (Chuck Connors) from “The Rifleman” (gosh, look at the Irish names here) in cuffs and the juzgado every time they put down some mad dog killer. I have people tell me that nobody should have to even report a justifiable shooting. Just toss the dead criminal down an abandoned mine shaft, they say. I wouldn’t be surprised if some justifiable shootings are going unreported because of the custom of automatically detaining everybody.

  24. Dave (the Liberal, non-Uncle one) Says:

    Steve from MA: Presumption of innocence is something that happens in court. LEOs have no Constitutional obligation to do it, except to the extent that they must respect the other Constitutional rights, such as the right to remain silent, somewhat based on it.

  25. Jim Fleming Says:

    I made my position as clear as I possibly could in my book “Aftermath”, and folks are either going to agree, or they re not.

    It is critical to state, as early as possible, “I will not make a statement or answer any questions until my attorney is present.” And then shut up. Because if you do not, the Supreme Court has ruled that anything that you say, do, any gesture, facial expression or body language may be introduced at trial by the prosecution, and argued to attack your defense.

    The powerful chemical agent adrenaline can, and will, distort memory, cause memory gaps, and create false memories. You cannot “train” yourself to overcome these effects, and, if you are laboring under the influence of the effects of adrenaline, you WILL NOT KNOW IT. Not because I say so, but because Dr. Alexis Artwohl, one of the nation’s leading experts on the subject says so, after decades of research and working with cops in the aftermath of officer involved shootings, says so, and has said so repeatedly in books, and articles and personal presentations. Once you make an inaccurate statement to show the cops you’re a “good guy”, your attorney will play hell getting that bell unrung, and may not be able to at all. That is something I know about, because it is what I have had to try to do in countless cases as a self-defense trial attorney for over 33 years. After I spent a decade on the streets as a cop.

    The Constitution is the Constitution. It is there for everybody. It does not care if you are innocent, or if you are guilty. The laws and procedural rules that emanate from it treat all the same. And I could care less whether the first responders “think” I, or any of my clients, are guilty. I only care what prosecutors and judges and juries think about that issue. And that conclusion will come later, when the entire matter is fully investigated and all the evidence has been thoroughly analyzed.

    I also do not care if my client (or myself) are taken “into custody”, which is not at all the same thing as being arrested. At that point in time, it is the safest place my client can be. Safe from revenge seekers, safe from the media jackals, eager for controversy, and safe from their nosy neighbors and idiot brother in law Ted.

    Miranda tells us “You have the right to remain silent”. The RIGHT. As an American citizen that right is secured for each of us. Criminal defense attorneys are not called that because they represent only criminals. We are called that because we represent people accused of committing criminal acts. I have fought for people mistakenly accused. For people wrongfully accused, and for people accused by crooked cops who did everything they could do to convict my client of first degree murder, including extracting false confessions from a mentally deficient man who did not admit his lies until I forced him to on the stand after 6 days of trial.

    My position on this issue will not change – ever. I share this position with every experienced trial attorney I know across the country.

  26. James Says:

    Hmm…I was thinking it should be this:

    – Call 911 if Law Enforcement hasn’t arrived.
    – Secure my firearm (either in holster or with slide/cylinder locked back or open)
    – Call the ACLDU
    – The millisecond the first officer is on site, keep my hands visible and say “Officer, I will sign the complaint”.
    – Cooperate with the heroes of law enforcement.

  27. Two-gun Steve Says:

    Wondering if Jim Fleming would approve of simply stating: “No statement, no questions, yet, please. I need to wait for my attorney?” My current plan after absorbing the messages above.

    This is a great thread. Remember, the shootee may not die, and probably will sue your socks off, and may win. This happened to a self-defender whom I know.

    I always hope to do right, though, and most likely would even be willing to give first aid to someone I had just shot, given assured safety. I am curious how often such a thing has occurred.

  28. kukuforguns Says:

    Greg Ellifritz incorrectly says:

    “Note that there is a difference between saying “I don’t want to answer your questions.” and “I would like to speak to an attorney before any questioning.”

    If you say the first statement, the cop can keep asking you questions. You just don’t have to answer them. If you use the second phrase, the police officer must stop questioning you until you have spoken to your legal counsel. If he does question you after you’ve invoked your right to counsel, the answers to his questions will not be admissible in court.”

    I’m sure Mr. Ellifritz knows much more about gunfighting. I’m a lawyer and the above statement is wrong. The right to counsel does not attach until legal proceedings are initiated against the accused (e.g., arraignment). The right to silence does not attach until arrest. This means that if the police have not arrested the shooter, they can continue to ask the shooter questions even if the shooter says, “I don’t want to talk” or “I want a lawyer.” The police are very good at getting people to talk. They do it every day. It’s their job. Remaining silent is hard. Giving the police a short concise statement and then remaining silent is probably harder.

  29. LarryArnold Says:

    One thing that hasn’t come up, and I think should (and might be fodder for a future column) is that how you will be treated after self-defense depends on where you are.

    I would expect very different LEO/DA response in the small Texas town where I live, where hunting is a major industry, there are no elected Democratic officeholders, and charities with no relation to firearms (like the Chamber of Commerce) raise funds with shotgun tournaments and firearm raffles, than I would in liberal Austin or anti-gun Houston.

    Which is one of many reasons I live where I do.

  30. Jim Fleming Says:

    The Supreme Court requires a clear and unequivocal statement expressing reservation of the right to remain silent until counsel is present. Any statement incorporating those elements will suffice. Once you have stated it, the officers are not prohibited from continuing to question you, and in some cases they may persist. Most folks who spend time talking about what they will say and do after a fight for life has concluded have never been involved in one. Many have found that once they start talking they simply cannot shut up. Many have discovered that what they think they said to the police and what the police reports reflect that they said are two very different things. Having been through these experiences with clients hundreds of times, I offer this advice for a very good reason. As do many other experienced attorneys. But like any other advice of its type, folks are free to ignore it. I, personally, just don’t think thats a very good idea.

  31. Dave (the Liberal, non-Uncle one) Says:

    Re Jim Fleming: It’s nice for a lawyer with far more criminal defense work than I’ve had to confirm what I said, “It’s a lot harder to stop talking once you start talking than it is simply not to talk at all (and that’s pretty darn hard in itself) and that’s especially true when you’re in an excited/traumatic state and when experts in getting people to talk — LEO’s — are the ones talking to you.”

  32. MichaelJT Says:

    Take a look at what every cop says these days after shooting someone:

    “I was in fear for my life.”
    Repeat at every opportunity.

    Pretty obvious that’s the go to argument provided by the police union legal representative. Might be a good idea to have that statement on the record.

    There are some good arguments put forth here as to what to do and/or say after a shooting, but I would bet 95% of everybody reading this blog wouldn’t remember 10% of the information just after they shot someone in a high stress situation.

    Best idea is to say nothing except, I was in fear for my life and I want my lawyer.”
    With the state of forensics today, if you are involved in a righteous shoot, there will be evidence to prove it.

    Plus today everybody has a camera in their phone. If possible, take pictures of EVERYTHING as you are waiting for the responding cops.

    Bering in mind that there are current and former LEOs and their defenders on this forum, what they taught you in the first grade is a lie. The nice police officer is NOT your friend, not in this situation anyway. He wants to put someone’s ass in jail, and yours is real handy. If he lets you go, he hasn’t done his job. A night in jail is a small price to pay rather than stupidly incriminating yourself. Face it, your aren’t going to sleep no matter where you are.

    Someone very wise (might have been F. Lee Bailey) once said something like, “The prisons are full of people who thought they were smarter than the cops and could talk their way out of jail.”

    That’s what you pay your lawyer to do.

  33. Mike Says:

    He nailed it. I trained my wife what to do if she defends our home in my absence: “This is my house. This is my gun. This is my ID. These are my kids. I don’t know that guy. He was going to kill us. You’ll have my full cooperation but I’d like to speak to my attorney before answering any other questions.”

  34. Jim Fleming Says:

    Dave: In my most recent self-defense case, the client was questioned by state cops within 90 minutes of the fatal shooting incident (amd did ot tell him that he had hit and killed the perpetrator who tried to run him down in his own drive way. His original account of what transpired saw him arrested, and charged 3 days later with manslaughter. Four days later I took him step by step through the incident and only then did he remember critical points that provided a defense to the charges. The crime scene techs also later produced evidence that corroborated the second, and more accurate version of the events. Mas served as our technical expert and, as a result, after 7 months of hard work, a client who was headed for a mandatory prison sentence wound up seeing the manslaughter charge dismissed, and a short jail sentence with work release imposed for conviction on a reckless discharge. These same cops would not be allowed to question an officer in an OIS for 72 hours. But from their perspective with civilians “its different”. I say its not, and am prepared to go to war to prove it. All I, and my brothers and sisters of the Bar, ask, is that you not make our jobs any more difficult. Being taken into custody and having some slick sleeve with less than 5 years on the job “think” you’re guilty is the very least of your worries.

  35. Dennis Says:

    Jim Fleming,

    Don’t wish to retry the case, but why the 90 minute lapse before state police questioned him? Did your client make the initial call to 911? Did local law enforcement answer the initial call and summon state officers for follow up investigation?

  36. Jim Fleming Says:

    He made the 911 call reporting an attempted home invasion. It took the locals over an hour to get to his home because they were all standing around looking at the deceased out on the road where he bled out. They contacted the state cops who took over the investigation. They rushed the questioning, which resulted in an inaccurate statement of the events by the client, which resulted in the prosecutor rushing the charging decision.

  37. Two-gun Steve Says:

    This thread contains a classic exchange of ideas! Let me add that I am now carrying a card with Mas’s 5-point checklist in my wallet, because it would likely be too much of a challenge for me to correctly produce all the points from memory in an interview. Many peace officers are probably familiar with Mas, which could also help, but some may not yet know of him.

    I have noticed some possibly politically-related fatal shootings reported lately out of Florida, including a federal prosecutor and a crime witness. I hope that any yet-alive, at-risk folks will get effective help to head trouble off at the pass. The victims would have been better off in protective custody, all right.

  38. WR Moore Says:

    A couple of folks have raised a point about continued questioning after invoking the right to remain silent. I’ve wondered if it would be politic to make a comment to the effect that “I don’t have (your) Garrity protection, I will remain silent until I have my attorney”. Repeating the desire to wait for the attorney works.

  39. Dave (the liberal, non-Uncle one) Says:

    Two-gun Steve: Be very, very careful when you reach for that wallet to get your card out.

  40. Roger Willco Says:

    MichaelJT mentioned using our phones to take photographs. Maybe those with smart phones should inform the police that they will begin audio recording, and let the phone record the sounds and conversation for as long as it can. This way, if any crooked cops try to spin words, the judge can listen to the audio.

    I don’t have a smart phone, and I don’t know how clear the audio would be. I also believe someone could try to do both audio and video at the same time, but that could be pretty complicated if you are moving the phone too fast.

    Also, when cops arrive on the scene, they could bring some audio recording device, (I’m sure tape recorders are too old-fashioned now), and at least then there would only be one version of what was said under questioning.

  41. kukuforguns Says:

    WR Moore:
    “I’ve wondered if it would be politic to make a comment to the effect that “I don’t have (your) Garrity protection, I will remain silent until I have my attorney”. ”
    No.
    Moreover, since asking for a lawyer has no benefit during this time frame, I don’t think you should mention your lawyer.
    Go ahead and point out the evidence, claim to be a victim, and say you’ll press charges. If the police continue to ask questions, simply state: “I’ve already given a statement to you. ”
    There is an unfortunate connotation that asking for a lawyer is an admission of a guilty conscience. So, don’t mention a lawyer. Simply tell the police you’ve given your statement. Actually, there’s nothing simple about it since making a statement and then shutting up is almost impossibly hard. But, that’s your goal.

  42. LarryArnold Says:

    These days I’m pretty sure your phone is going into the next evidence bag after the one your gun goes in.

  43. Jim Fleming Says:

    I’ll say it again. The Supreme Court has ruled that until you make a clear, unequivocal statement reserving your right to remain silent until your LAWYER is present, everything you say, and do, every gesture, body language, facial expression is fair game for use in trial by the prosecution. As usual, most of the folks sitting around discussing all the things (cards in billfolds, cellphones, etc.) they are gonna do have never been involved in a deadly force encounter, and have not a single clue how they are going to respond, physically, mentally or emotionally while under the influence of adrenaline. But the idea that requesting your lawyer’s presence before making ANY statements is going to “make you look guilty” to cops, whose opinion on that issue doesn’t mean spit just leaves me shaking my head. I’ll keep beating this drum, as do many other experienced attorneys, some folks gonna listen, some folks just won’t, no matter what.

  44. Dennis Says:

    Jim Fleming,

    Was the “body bleeding out” found as a result of your clients 911 call, or was the body discovered prior to police receiving the attempted home invasion call? Was the attempted home invasion suspect still alive when he was located bleeding out? Were emergency medical care called to the scene?

  45. WR Moore Says:

    KUKU—-we’re talking about two different places in the interaction-I’m referring to something taking place AFTER you’ve pointed out the relevant stuff and invoked your right to remain silent.. That said, I posted while fatigued and the filter between brain and keyboard wasn’t functioning as intended.

    Garrity wouldn’t apply in any way, shape or form and is irrelevant. Forget I asked.

  46. Rich Rostrom Says:

    One problem not addressed: what if the police arrive while the situation is still active?

    For instance, one perp is down, but two others (armed) withdrew and may still be in the area; or armed perps are on scene but out of sight; or fleeing perps took a person or volatile property with them (they fled in a stolen car, or took explosives or firearms); or the citizen is holding one or more perps prisoner.

    Such circumstances must be explained to police immediately, I think.

    As for “trusting” police. In general police and prosecutors want to do the right thing, but unfortunately they cannot be relied on to get it right – and they have a very cynical view of humanity. Even “innocent victims” lie to them or may have malicious motives.

    One should check out the recent behavior of one’s local enforcement in other self-defense cases. (It might be a useful project for an NGO – compile ratings of agencies and departments, and issue warnings against those known to act in bad faith or with prejudice).

  47. Richard Says:

    The hard part about the 5 point list is remembering in the the stress of the aftermath. I think I am going to laminate it, put it behind my DL and read it every time I have the DL out.

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