Law of Self Defense Question of the Week.
USA – -(Ammoland.com)- This week’s Law of Self Defense: Question of the Week comes from a submitter who asked that they not be identified:
I’ve been told to say nothing to the police after a defensive use of force except, “I’ll cooperate but only after I talk with my lawyer.” Is this your recommendation?
As is often the case with the law, the real world is a bit more complicated than this overly simplistic strategy suggests. So let’s take a look at some of the real world dynamics that will likely influence how you interact with the police after a defensive use of force.
Anything You Say (and Don’t Say) Can Be Used Against You
The “say nothing until lawyer” advice is based on the reality that anything you say to police can and may be used against you. It's certainly true that the only 100% certain way to avoid saying anything incriminating is to say nothing at all.
Rarely mentioned, however, is that what you DON’T say can also be used against you. Sure, you have a Constitutional right to remain silent, and once you’ve asserted that right your silence cannot be used against you.
But this privilege applies post-arrest. Your silence before then can certainly be used by the Prosecution to infer guilt—an innocent person would have mentioned self-defense at the time, they’ll argue, and the fact that you did not do so suggests you only fabricated your story of self-defense after the fact to avoid criminal liability.
Now let’s take a look at the three distinct stages of law enforcement interaction you’ll likely have after a use of defensive force: (1) the 911 call, (2) interacting with responding officers, and (3) interacting with investigative officers.
The 911 Call: Be the Complainant, Not the Respondent
A huge problem for Michael Dunn in his claim of self-defense was the considerable consciousness of guilt evidence he provided to prosecutors. In particular, his flight from the scene well beyond the need to secure his safety and his failure to ever report the shooting to law enforcement before he was arrested at gun point on a murder warrant. This conduct was far more consistent with the behavior of someone who believed he’d “gotten away with it,” than it was with the behavior who believed they’d acted in lawful self-defense. This was especially damaging given that the only evidence of self-defense came from Dunn’s own testimony in court.
A couple of weeks ago the LOSD Question of the Week discussed the dynamics of reporting to law enforcement if one merely displayed, but did not fire, a weapon to fend off an attack: Reporting Self Defense with a Gun To Law Enforcement
In that post we talked about the fact that the police responding to a call tend to put the actors into one of two buckets. The person who called them is the “complainant,” and has a presumption of innocence—after all, they’re the one that called the police. The person about which the complainant, well, complained is deemed the respondent, and is the presumed troublemaker—after all, they didn’t call the police.
These presumptions aren’t cast in iron, and can be overcome by contrary evidence. But they do set perceptions right from the start of police involvement, and go a long way to how the police view the parties, as well as informing their developing hypothesis of how things went down.
In the Dunn case, for example, the police did not timely search the area to which the SUV had temporarily withdrawn, and therefore had no realistic prospect for finding the shotgun that Dunn alleged the teenagers had (assuming such a shotgun, or another item of similar appearance, ever existed at all). The real responsibility for this “failure” on the part of the police, however, falls on Dunn.
When the police arrived Dunn had already fled the scene, and the boys were the only actors waiting at the gas station to talk with them. Naturally, the teenagers described events as an unsolicited assault upon them, and thus they became victims and complainants, as opposed to suspects. Had Dunn been present, or at least nearby, to tell his side of the story, the situation would have appeared far less one-sided, and both Dunn and the teenagers would have been prospective suspects. In addition, with Dunn directing police to the area in question, a more thorough search for a shotgun could have been made in a timely manner.
Let’s assume for purposes of this post, then, that you buy into the value of being the complainant rather than the respondent, and you therefore are the first to call 911.
Taking the “say nothing until I talk to my lawyer” advice literally, exactly what are you going to say when the dispatcher answers your call? “I will say nothing until I’ve spoken to my attorney.” Really? When they ask “what’s your emergency?” surely that statement can’t be your reply. Rather, you’ll necessarily provide some description of what’s happened and the location to which you’re asking law enforcement (and ambulance) be sent.
So, you’re ALREADY speaking with the police. And as long as you’re doing so, my advice is to get your claim of self-defense into the evidentiary record as soon as possible. You were attacked, you were in fear for your life, you were forced to act in self-defense. Of course, all of this will be recorded, and that recording will be admissible in court. As a result, the jury will get to hear your claim of self-defense in your own words and voice, with all the stress of the moment that such an event necessarily brings with it—without you having to take the witness stand and subject yourself to cross examination.
Of course, they’ll also get to hear anything incriminating —or anything that could be twisted into something incriminating by the prosecution— so you do not want to develop logorrhea and begin sharing every emotive thought and perception with the dispatcher.
Just that simple statement of facts that will, in any case, have to be stated at some point if you are to make a claim of self-defense.
Such a statement is also almost always (absent powerful contrary evidence) sufficient to meet your burden of production to get self-defense into court in the first place. Had Dunn made such a statement to 911 and had it played in court he would not have been compelled to take the witness stand in order to claim self-defense through personal testimony and subject himself to cross-examination.
The Responding Officers
You’ve called 911 to request law enforcement to your location (or the location of the defensive use of force, in the event you’ve fled the scene for safety), and eventually they’ll arrive. Hopefully, quickly, too often not so quickly. In any case, sooner or later they’ll be on scene, walking up, seeing a body on the ground, you standing nearby, and asking what’s happened. Their job is to secure the scene for evidence and witnesses (and safety, of course), and await for the investigative officers to arrive.
Is this where you literally say nothing but “I will say nothing until I’ve spoken to my attorney?” I suggest that’s not the best of strategies for a number of reasons.
First of all, it’s not conduct consistent with innocence, but rather with consciousness of guilt. Of course, if we assume you’ve already called 911 and spoken with the dispatcher as described then it’s already on record that you were attacked, were in fear for your life, and used defensive force. If so, no harm in telling the same to the responding officers.
Second, you will definitely want to be cooperative and compliant with responding officers in terms of securing the scene and their safety. If your pistol was involved, it should be back in its holster, not in your hand (obviously). Further, don’t make the police search for it but verbally advise them as to it’s location—VERBALLY, do not use your hands to gesture to your gun (obviously).
Third, you’ll want to make sure that you advise the responding officers of any evidence that might otherwise be overlooked. If your attacker came at you with a knife, and that knife fell into a bush when he fell to your shot, you definitely want to make sure the police know to look for the knife in that bush. If the knife is overlooked and not secured as evidence, for trial purposes it really doesn’t exist—and then what’s your justification for the use of deadly force in self-defense?
The dynamics are the same with witnesses. Attackers often act when there are few if any witnesses around. If we assume there were a handful of witnesses, we can usually be pretty confident that by the time the police actually arrive a crowd will have begun to collect. Now those five witnesses are buried in a crowd of perhaps 50. Are you really going to force the police to interview 50 witnesses and hope they get to the key 5 before the crowd disperses? If your 5 witnesses disappear from the scene, the prospects of later identifying and locating them becomes very slight indeed. And as the good guy, you WANT witnesses. If you did things right those witnesses are overwhelmingly likely to buttress your claim of self-defense.
Again, however, you need to avoid logorrhea. Outside of sharing with responding officers what you’ve already shared with 911, pointing out exculpatory evidence, and pointing out exculpatory witnesses (and requesting medical attention—but that’s a subject for another post), it’s time to notify them that you’ll be happy to cooperate further after you’ve had a chance to consult with legal counsel. From that point on you are far more likely to say something that can be made to appear to undermine your claim of self-defense than to help it.
The investigative officers arrive at the scene some time after the first responders, and as the name suggests it is they who actually conduct the investigation—the collection, assessment, and analysis of evidence to begin to develop a working investigative hypothesis of what happened.
These investigative officers will typically be identified as detectives, although they need not do so. They may speak to you initially at the scene, although in many cases they prefer to have you secured in their workspace before they begin to question you, so as to better control the environment, have accessible recording equipment, for psychological reasons, and so forth.
Another term for these investigative officers is: interrogators. They have professional training and experience in interrogation techniques, and are extremely well informed about the psychology of extracting information from suspects. You are almost certainly entirely ignorant of these techniques. In addition, they know precisely the kinds of statements that prosecutors will want to see obtained in order to advance a prosecution, while you have only the vaguest sense of what types of statements can get you in serious trouble.
It is in the context of these investigative officers that the advice to say only, “I will say nothing until I’ve spoken to my attorney” has real, and very important, application. Given that you've already advised 911 that you were attacked, in fear for your life, and compelled to act in self-defense, and you've advised the responding officers how to secure exculpatory evidence and witnesses, there's really no upside to talking with investigative officers in the absence of legal counsel, and there's a great deal of potential downside. This is very dangerous terrain even for the lawful defender, far too dangerous to take on yourself—especially considering the stress you’ll still be experiencing.
Let me put it this way—with all my decades experience studying the law of self-defense, in the aftermath of a defensive force encounter I personally would decline to say anything substantive to investigative officers without legal counsel present.
The only two things to come from your mouth in the context of investigative officers should be: (1) You are asserting your right to remain silent, and (2) you are asserting your right to legal counsel. PERIOD.
Right to remain silent.
Right to counsel.
(Note: now that you are in a custodial setting, e.g., “under arrest,” your Constitutional right to remain silent has kicked in and your silence here cannot be used to infer guilt.)
And, of course, your counsel will help you ensure that your testimony, if any, accurately reflects your narrative of innocence, and avoids accidentally triggering any red flags that would look to a prosecutor like building blocks for a compelling narrative of guilt.
Ok, that’s probably enough for this week’s question of the week. This week’s winner, “Mr. Anonymous”, will get their complimentary autographed copy of “The Law of Self Defense, 2nd Edition” sent out to them tomorrow.
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.