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Law of Self Defense Question of the Week

Self Defense Gun

Self Defense Gun

Law of Self Defense, 2nd Edition

Law of Self Defense, 2nd Edition

USA - -(Ammoland.com)-  This week’s Law of Self Defense: Question of the Week comes from “Alliance Bean (@NerkBuckeye),” who asks:

“What’s your opinion on reporting to law enforcement when drawing your weapon to fend off an attack without witnesses? Any downside?”

This is a great question, one that I’m sure everyone who carries concealed has asked themselves at one point.

Assumptions: Carry Was In All Ways Legal; There’s Always a Witness

Let’s assume up front that we’re talking only about circumstances in which the weapon involved is being legally carried—that is, any necessary licenses are in the holder’s possession, they are not in a prohibited place to carry (e.g. a school), nor in any kind of prohibited condition (e.g., intoxicated). Any of those not being the case would obviously raise a whole host of legal issues that go beyond the scope of this post.

We should also point out that the question includes a very common, but very dangerous, premise: that there were no witnesses. This is, in fact, all but impossible. Even if your weapon was seen only by the person against whom you defended yourself, THAT person is a witness. In addition, it is all but impossible to be certain that you were not witnesses —indeed, that you were not recorded.

To Call It In, or Not Call It In, That Is the Question
With that out of the way, let’s look at the two possible choices presented by the question. You reasonably believed you were facing an imminent threat of death or grave bodily harm (and had no safe means of retreat, if in one of the sixteen duty-to-retreat states), you drew your sidearm to defend yourself, and at the sight of your gun the prospective attacker threw up his hands and ran away. You check your six, everything looks good, and with the threat resolved you holster your weapon. (This “no-shoot” scenario is, research suggests, the most common for the defensive use of firearms.)

Now what? Call the cops and report the incident, or just head on home? Either approach has its upside and downside.

Calling It In
The option of reporting the incident to the police has a strong potential for an immediately felt downside—interaction with law enforcement officers who know nothing about you except that you just self-reported having threatened another person with a firearm.

On it’s face, that admission alone is sufficient to support a number of prospective criminal charges, ranging on the low end from disorderly conduct, through brandishing, all the up to aggravated assault. That last charge is good in many jurisdictions for 10-15 years, and more in jurisdictions with sentencing enhancements for the use of a firearm in a crime (such as Florida’s now infamous “10-20-Life” statute, 775.087).

http://lawofselfdefense.com/statute/fl-775-087-possession-or-use-of-weapon-aggravated-battery-felony-reclassification-minimum-sentence/

Of course, you’ll be making the case that while your display of the weapon might otherwise have been a potentially serious crime, in this case the act was justified, and therefore lawful, as an act of necessary self-defense.

Responding Officers Like to Keep Things Simple
The difficulty is that patrol officers are generally not inclined to make those kinds of calls themselves. There’s probable cause for an arrest—your own statements—and the easy thing would be to make the arrest and let the matter get settled (and responsibility for the decision) further down the criminal justice pipeline. Nothing personal, it’s just the “machine” responding in the way most consistent with its design.

Alternatively, if you seem very credible, a check reveals no red flags, and everything generally seems on the up-and-up, they may just call in their Sergeant or whoever is in the equivalent oversight position, and let him (or her) make the call. A better outcome than arrest (which could still happen), but of course now we’re talking about spending a considerable amount of time standing wherever, doing not much of anything except answering an occasional question, listening to police band chatter in the background, and waiting for your immediate fate to be decided. You’ll certainly have been disarmed if only to secure everyone’s safety, and in many jurisdictions procedure might also have you restrained in some manner (cuffed, or placed in back of cruiser).

In the end, they may decide to simply kick you loose. If so, great.

Welcome to the Gears of the Criminal Justice Machine
If they don’t decide to simply kick you loose, and either a criminal summons is issued or they haul you off, now you’ll obviously need legal representation. Most of us don’t have a criminal defense attorney on call (after all, we’re the good guys), so it means finding one and paying a hefty retainer, and then whatever legal costs occur as you proceed merrily down the criminal justice pipeline.

It all sounds, and is, potentially pretty awful. So it’s not hard to understand the incentive to simply pack up and head home after having successfully discouraged a deadly force attack with a mere display of your own deadly force. Who’s to know, right?

Not Calling It In
So, if self-reporting a defensive display of force can cause you so much trouble, why not forget and head on home? After all, nobody was hurt, no shots even fired, right?

I’d hazard to guess that a great many defensive displays of force end up in exactly this way—the armed citizen heads home, and nothing more is heard about the matter.

But what if that DOESN’T happen? What’s the prospective downside to NOT “calling it in”?

Unfortunately, they’re potentially rather severe.

To start, of course, you face all the same potential criminal charges with which you were faced when you self-reported—everything from disorderly conduct to aggravated assault.

Being the Respondent, Rather Than the Complainant
Except self-reporting gave you a patina of credibility that you don’t have when the cops have to come and find you.

Indeed, how DID they come and find you? Likely as not, they got a call from the frightened dirt bag you scared off who is outraged—OUTRAGED!—that some dude pointed a gun at him. (Maybe he’s also aware that he can win money from you in a civil suit for assault, even if you didn’t harm a hair on his head.) Ah, and he got your plate number as you drove off.

Because it was the dirt bag who called the police, in both their official reports and in their practical worldview, it is now HE who is the “complainant” of a crime—the presumed “offended party”–and YOU who are the “respondent”—the presumed offending party. This worldview also strongly tends to extend through the criminal justice process to everyone else who will play some role in judging your conduct—prosecutors, judges, and jurors.

But It Gets Worse: Consciousness of Guilt
If that’s not bad enough, your failure to report the events may be characterized as “flight from the scene.” This is very bad, indeed, because it suggests what’s legally referred to as “consciousness of guilt.”

“Consciousness of guilt” refers to evidence from which one can infer that a person believes themselves to be guilty of wrongdoing. Our legal system has long recognized that innocent people tend to act differently than guilty people in the aftermath of a potentially criminal event. Conduct such as intimidating witnesses to change their story, or altering or disposing of evidence are pretty clearly the acts of a guilty person. So does flight from the scene, unless done for a limited purpose such as securing one’s safety (immediately after which you’re supposed to stop your “flight”).

The jury will be explicitly instructed that if they find credible evidence of such conduct they can infer from that evidence that not only does the prosecution believe the defendant is guilty, even the defendant believes the defendant is guilty. Ouch.

Bottom Line: Greatest Potential Downside from Not Reporting
So, simply put, if you don’t self-report the defensive threat, and are identified and confronted by police as the respondent to a criminal complaint, not only are you facing all the same potential criminal charges as if you had self-reported, but you’re doing so from a very substantially weaker legal position.

Indeed, what might have appeared as a reasonably compelling narrative of innocence had you been the complainant, minimizing your perceived legal vulnerability, now appears very much like a reasonably compelling narrative of guilt, and making you look very legally vulnerable indeed.

And looking legally vulnerable to a prosecutor is much like bleeding in a pool of sharks. The outcome will probably be unpleasant.

Wrap-up
Ok, that’s probably enough for this week’s question of the week. This week’s winner, “Alliance Bean (@NerkBuckeye),” has won his choice of a custom autographed copy of “The Law of Self Defense, 2nd Edition,” or the alternative of a snazzy LOSD baseball cap.

If you’d like to submit your own Question of the Week, and become eligible to win a free book or hat, simply submit your question at Ask Andrew at the Law of Self Defense web site., to my Twitter account at @LawSelfDefense (no “of”).

Stay safe!
 
–Andrew, @LawSelfDefense
 

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (where a custom autograph can be specified, great for gift purchases!), Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

In addition to the book, Andrew also conducts Law of Self Defense Seminars all around the country. Seminars for 2014 are currently being scheduled, if you’d like to see one held in your area fill out the comment box on the LOSD Seminar review page, where you can also see reviews of recently completed seminars in New Hampshire, Maine, Texas, Massachusetts, Ohio, Virginia, Florida, South Carolina, Georgia, and elsewhere.

Andrew is also a contributing author on self defense law topics to Combat Handguns, Ammoland.com, Legal Insurrection, and others.

You can follow Andrew on Twitter at @LawSelfDefense, on Facebook, and at his blog, The Law of Self Defense

  • 25 User comments to “Reporting Self Defense with a Gun To Law Enforcement”

    1. Richard L on February 6, 2014 at 6:15 AM said:

      In other words you “screwed” if you do and/or “screwed” if you don’t.

    2. oldgringo on February 6, 2014 at 6:29 AM said:

      I wouldn’t trust the police with filing about anything…You could possibly end up in the slammer for your testimony…Admitting you may or may not have broke the law by pulling your gun on some one…Not all police officers support your right to carry let alone your right to pull you gun on someone that you perceive as being a threat to yourself or others…Beware of any such bill…It may come back and bite us in the rear!

    3. What about calling 911 & reporting an attempted robbery? Say you want to press charges against the assailant. In other words, don’t report it as a defensive use of a gun. When the police ask what happened tell them then that you scared the dirt bag off with your gun but only then. First, establish that you’re the victim.

    4. I CONSIDER IT MY CIVIC DUTY TO REPORT ANY CRIME THAT WAS PREVENTED THROUGH THE DISPLAY OF MY WEAPON. THE POLICE MAY BE AWARE OF OTHER LIKE CRIMES IN THE AREA AND NEED ANY INFO U CAN PROVIDE. I AGREE WITH ‘ OLD GRINGO ‘ ABOUT KNOWING THE LAW . I RESIDE IN ARIZONA……. I KNOW THE LAW

    5. We saw those problems in Arizona. I spoke with a victim who was put through the ringer. He and his attorney were about to enter the courtroom for the trial when he was informed that the prosecution had another 911 call that confirmed his version of events. The perpetrators were never prosecuted.

      So, we passed the defensive display law, that allows you to show that you are armed, without it being considered aggravated assault. Florida is in the process of passing a similar law now.

    6. I suspect a lot of the “gun shot victims” in urban areas are really perpetrators of crimes that were “nipped in the bud”. How many people are charged criminally and go broke defending their legal use of deadly force?

    7. If the bad guys has a few of your bullets in him, call the police, if not…don’t. In 1997 a couple of losers tried to relieve me of my wallet, I persuaded them to move along with an old PT92 a friend had sold to me for $150.00. I called the local police, and they seemed really interested in the thugs until I mentioned the part about me pulling a gun. There was a long pause from the dispatcher, then he asked me where I was, and if I still had the firearm on me…..I promptly hung up the phone, got in my car, and drove away.

    8. How about simply not showing your weapon at all until you have to use it?

    9. Buck Crosby on February 6, 2014 at 12:18 PM said:

      With many of todays cops thinking vand acting like seal wannabees or NAZI storm troopers I would advise against telling them anything voluntarily , nor would I lie to them if questioned in the event someone has lodged a complaint or witnessed the act Just keep your mouth shut and go about your own business unless approached by a cop . Twenty or thirty years ago I would have had a totally different response , but those were the days law enforcement officers knew they were there to protect and serve , not Harass and intimidate .

    10. This is a very well written and thought out article. I am in law enforcement and I highly encourage reporting these events as you would probably make a great witness and perhaps help us arrest a potentially dangerous perpetrator. Do not consider this legal advice as I am not a lawyer, but I think you should consider it your civic duty to inform the police. Most of us, especially at the street level, are strong 2nd amendment supporters and believe in self defense.

    11. If you didn’t fire the weapon then you didn’t need to “brandish” a threat of deadly force…convicted by your own non-action, you’re going down. I don’t agree, but that’s what you’re facing in this up-side down world.

    12. I had a guy try to rob me at gunpoint at a gas station. He decided against it when he saw my legally carried 10mm pointing towards him. He was with another scumbag and got into a vehicle and circled the station out on the street several times and then left. I vacated the area due to an ongoing threat that they posed and called the cops. I told the truth in detail down to the make and model of vehicle. The officer on the line was VERY interested in my gun. Make, model etc. It was then I started getting wise. I received a summons a week later. Turns out scumbags had ditched the revolver and found a cop, to whom yhey said I had tried to rob them! My lawyer went to the gas station to get the video footage to prove my innocence, and found out the cameras were all fake, and “nobody saw nothin”. I was acquitted of armed robbery, and still have my concealed weapons permit, but I now see with more clarity. The bad guys knew the law better, and I got screwed for telling the truth. The cops cost me 5 thousand dollars in my defense while all the crimes that have been perpetrated against me have cost less than a thousand in property. Takeaway is this. Every situation is different, the bad guys use the system, and THE COPS ARE NOT YOUR FRIEND. They don’t care about innocence or guilt, only power. Just for reference, I have a family, volunteer with the Boy Scouts, have two masters degrees and work as a research scientist. I’m not a kook, just been there, done that. Do not ever think cops are good guys. It’s not worth losing everything over. Judge each situation accordingly.

    13. If you’re being accosted, and are armed, then shoot the perps. Go home, and keep your mouth shut!

    14. And ‘we the people’ still think we have a ‘justice system’/….I submit it is a revenue producing and job guarantee system….Today YOU are the criminal until you are proved innocent…..Officer safety is BS…. and tyranny….plain and simple….

    15. James B. Towle on February 7, 2014 at 12:08 PM said:

      I have said this many times on the Show…the first person to call 9-11 and make a report is “presumed innocent”. Therefore…if the Bad Guy calls first and reports you threatened him by pulling a gun….guess who the police will arrest first…in most cases they will arrive with the information from 9-11 that YOU are the Bad Guy….so act responsibly….if your not willing to act Responsibly than someone else will determine your future….

    16. andy gervase on February 7, 2014 at 4:38 PM said:

      the damn police seem to always get it wrong. I would go home and shut my mouth. it is one person’s word against yours. KEEP YOUR FING MOUTH SHUT!!!!

    17. Many years ago I was involved in a shooting in Bogota, Colombia. I was eating lunch. (not in a tourist area). I had a CWP for a 38 Super.
      A man stepped inside the doorway, looked at me, pulled a revolver and fired 5 rounds before I was able to draw and fire one round. I hit him in the head. I waited for the police to arrive. (I could have easily left). There were about 30 people present. When the police arrived. seems somebody had stolen the revolver. I was arrested, and subjected to some “aggressive” questioning that cost me 4 front teeth, and a few stitches.
      Would I call the LEO, or wait again???

    18. Texas law covers this scenario too.
      According to chapter 9 of the Texas Penal Code, you may draw your weapon to create the apprehension of deadly use of force, even in circumstances where use of force is legal, but deadly use of force is not.
      In simple terms, if you face a threat of violence, you can legally draw your weapon to scare off an attacker, even if said attacker is not armed.
      The law further states that this use of force is not a deadly use of force unless you discharge your weapon.

    19. Jimmy the Greek on February 13, 2014 at 4:02 PM said:

      With the people i run with the golden rule is never call the police only bad well come from it , even if you end up busting a cap on them you need to get out of the hell out of there and don’t forget to pick up the shell casings if you can find them ! that is a good reason not to carry a auto and never hang around people that are cop callers

    20. I think it depends a lot on where you live. Living in Texas (not Austin or Houston) is a lot different than living in New York or California. Nevertheless, I know that the police are no longer your friend. That’s why it’s also smart to carry, along with your weapon, self defense insurance. I would be inclined to call it in (as the alternative is a black hole that you may or may not come out of), but then agree to talk about it after my lawyer is present. I show them my CCL and my insurance card that has instructions on the back as to what to say and what not to say. I cannot stress the importance of this in today’s lawless climate that exists even among law enforcement. Go here: https://www.usconcealedcarry.com/

    21. Jimmy the Greek on February 13, 2014 at 6:32 PM said:

      WesTexan I to live in Texas about 35 miles north of Houston . I have a friend that was arrested for having a stolen pistol montgomery co says it is hot however the feds says it is not so go figure .

    22. Ernest Newsum on February 13, 2014 at 11:02 PM said:

      The best way to avoid unwanted conflict is to place your hand on the butt of your weapon, but do not draw it from the holster unless the perp displays a weapon or moves toward you in a threatening manner. As a retired officer and senior citizen I generally avoid any situation that appears conflict prone. Even while on the job I avoided unholstering my weapon unless absolutely necessary. Let common sense prevail.

    23. Albert Holden on February 14, 2014 at 10:09 AM said:

      Ernest Newsum is right. I saw a self-defense film in which the man being approached responded to the suspicous person by telling him to stop where he was. Then he turned his body so that the sidearm was away from the approacher. He grasped the handle of his semi. He never drew his weapon and he refused to converse with the approacher. I don’t think you should draw your weapon unless you’re being approached with threats voiced or actions that are threatening.

    24. I live in Texas, just outside San Antonio, which has become another of the Texas Liberal’s strongholds. The law enforcement officers in SA and Boerne are all gestapo minded individuals. The small town I actually reside in has a more gun friendly mind set. However, having said that, I would still be apprehensive about notifying law enforcement first. I would call my attorney and have them call the incident in. I belong to an organization that defends lawful gun owners should the need arise to use your firearm. It is called Texas Law Shield. They have an annual “membership” and I personally would not carry a weapon without this service. You can check them out at http://www.uslawshield.com/texas/ The investment could save your future.

    25. […] Reporting Self Defense with a Gun To Law Enforcement […]

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