If you are faced with the horrible reality of having to use a weapon in self-defense, do you know what to do in the critical moments afterward? Is there anything you can do that could help you navigate the legal system? These are serious questions that warrant advance consideration. Massad Ayoob, the subject matter expert extraordinaire, recently posted his five-point checklist for such an occasion.
Any time you’re carrying a firearm, make sure to have a cell phone with you. It’s emergency communication for you, the same as a police officer’s portable radio. You want to be the first one who calls in to report the crime. When you call in, explain that there’s been a shooting and that a person has been injured. Describe yourself as the intended victim so that when the police arrive, they know who the good guy is and what you look like.
You’re going to be asked questions. Massad Ayoob gives a five-point checklist to his students, and here is why: he grew up being told that if you’re ever involved in a shooting, never talk to the police. When he began carrying a gun he spoke to lawyers, and even a judge, who advised him to never talk to the police — to let his lawyer do that. Even today, we still hear that advice.
However, over the years of being an expert witness (since 1979), Massad has changed his mind about the “never talk to police stance.” Yes, he used to give that advice, but no longer. Again and again, he saw the person who would not talk to the police being viewed as the perpetrator. Police were seeing the guy with the smoking gun as the perpetrator, and the guy laying horizontally on the ground as the victim. They don’t have a crystal ball issued to them at the academy to tell them who is the good guy and who is the bad guy, and they are people just like the rest of us. There are some critical things to establish at the scene.
And with that, we’ll go over the checklist of what to do after a self-defense shooting.
5-point checklist
1. Establish the Active Dynamic of what has happened here.
The fact that you shot a person is what will be on the mind of everyone involved. However, that is not the active dynamic. The Active Dynamic is what the person did to make you shoot him. “This man attacked me. This man attacked my wife. This man came at me with a knife.” Whatever happened, lay it out at the beginning.
2. Indicate that you will cooperate.
Massad Ayoob advises not to make a statement that you’ll be cooperating with the investigation in the future. He advises to offer to sign a complaint or to make a statement, but not to offer to sign a full statement right there — that such a thing should be later, after speaking to your attorney.
Indicate that you would testify against the individual. When we say these things, it’s the language of a crime victim, not that of a perpetrator, and it confirms that you were the victim of an intended crime, which is why the perpetrator is lying there bleeding.
3. Point out any evidence before it’s moved or disappears entirely.
Spent shell casings are a classic example. Massad has seen spent shell casings blowing around on an icy sidewalk in the wind, not being noticed until they’re at point B, rather than Point A. This creates the false illusion that the shots were fired in a different place than where they actually were, which can make you appear to be a liar. Spent casings, especially 9mm and smaller, often get caught in the treads of the boots of police or EMS personnel.
Other pieces of evidence, such as a dropped knife or a wallet can be kicked around and moved at shooting scenes. Emergency Medical Services personnel are tasked with saving lives, not preserving evidence. As such, they are usually not focused on not moving things. People will be rushing through the scene, literally trampling the evidence. Dropped weapons, if not noticed and guarded, can sometimes “walk away”, especially on a city street. Imagine the key piece of evidence, the perpetrator’s weapon, disappearing; you could be accused of shooting an unarmed person!
4. Point out any witnesses who may not want to get involved, but whose testimony may be critical in proving that you did, in fact, act in self defense.
In 1963, Kitty Genovese was murdered in New York City, and somewhere around forty people heard the murder taking place — heard her screaming for help. No one intervened or picked up a phone to call the police, at least until it was too late. She was stabbed to death. It’s a perfect example of witnesses not wanting to get involved. This phenomenon still happens today, people often don’t want to get involved for a variety of reasons. If you’re fighting for your freedom, you want those witnesses pointed out so that their testimony (assuming they’ll tell the truth) will be preserved.
You’re going to be barraged with questions, and once you begin going down that rabbit hole, you’ll figure out where the advice, “Don’t talk to the police” came from. Officers and investigators will ask you questions in the order in which those questions occurred to them. Your answering the questions in that sequence creates a false illusion that the events occurred in the order and time frame that they are suggesting. When you later try to explain the sequence of events, it seems as though you are contradicting yourself, and they can make you look like a liar.
You can expect to be asked questions such as, “How many shots did you fire?” Be aware that it is incredibly difficult to be able to count the number of shots you have fired accurately, especially if it goes beyond four or five. When you’re fighting for your life, round count is very low on your brain’s list of priorities. They may ask how close the attacker was, or how tall he was, or how big his knife or gun was. Tunnel vision occurs in a significant majority of people who are involved in violent encounters, and this creates a condition where the opponent and his weapon are perceived as being larger than they are and closer than they are. Your opponent might have appeared to be 6’, 6” tall when you were firing, but in reality, he might be of average height. Your reporting that he was far taller than he really was could be construed as a lie.
Take it from me, the effects of adrenaline can seriously take you off your square. Time seems to be altered, often going into slow motion. Tunnel vision occurs. Your hearing can shut down or drastically diminish.
The source of the “don’t talk to the police” advice comes primarily from defense attorneys, most of whom defend people who are, in fact, guilty. What could an attorney tell such a client that either wouldn’t be a lie that destroys his credibility, guarantees his conviction, and might add a charge of perjury? Naturally, they tell them never to talk to the police. Many people who talk to the police and who go to prison were, in fact, guilty. As such, if you’re guilty, it may be in your best interests not to talk to the police, talk to your attorney.
5. Request An Attorney
Respectfully decline to answer any further questions or sign statements until you speak to counsel.
