Law of Self Defense Question of the Week
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).
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.
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,[email protected]
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.