It is said that there are two Fights you have to win in a Self-Defense Shooting, the first is of course, the incident itself and the second is the Legal Battle afterwards. If you carry a gun concealed or openly or keep guns in the house for self-defense, READ THIS! Knowledge is Power, and it does not make good sense to spend thousands of dollars on weapons and training and not spend any time or money preparing for the LEGAL fight. Prepare now in every aspect! -SF
As a criminal defense attorney, I have been representing people charged with gun related criminal offenses for well over twenty years. During that time, I have been lead counsel in several hundred gun related criminal offenses including 1st-degree murder, drive-by shootings, aggravated assault, disorderly conduct, unlawful discharge and many more serious felony level offenses. I have represented people in countless misconduct with weapons and prohibited possessor criminal charges as well. In short, I have represented more people than I could possibly count in serious gun related criminal cases in both state and federal courts. There are few ways a person can get into big trouble more quickly than to misuse a firearm.
The decision to keep and bear arms is a serious one. It is also a decision that necessarily comes with great responsibility. All gun owners are required to know and follow the law. As you have heard many times, ignorance of the law is no excuse. Especially in cases involving firearms, you would be well served to study the law, and to think about its application before carrying, or even owning, a firearm.
This article is no substitute for studying the law regarding firearms and self-defense. Reading this article will not teach you everything you need to know about carrying or using a firearm; far from it. I recommend that all gun owners take an initial comprehensive gun safety class as well as a refresher class on a regular basis from a qualified instructor. Carrying a firearm is a huge responsibility. There is no room for error. I have seen many lives changed forever based on an erroneous split second decision or an honest mistake.
This article is written to offer you some information based on my many years of personal experience representing people charged with gun related crimes. You are not likely to get this information in most firearms classes. If after reading it you become extremely conservative about pulling out your firearm, I have accomplished my purpose. As I often say at the countless legal seminars, I have presented at, “Don’t be an idiot with a gun.” I urge you to be a responsible gun owner and think carefully before you act. Your very freedom could well depend on it.
1. Do Not Make Any Statements After A Shooting
Many people have an urge to explain what happened to the police. Don’t! I wish I could simply ask you to just trust me on this and accept what I’m telling you. Despite what the media likes to report, I realize many shootings are actually justified. I realize many police officers are good people trying to do the right thing. This does not change my mind about remaining silent. That said, if you are anything like me, you need more information. I get it.
As an initial matter, keep in mind that you have a 5th Amendment Constitutional right to remain silent. No further explanation or justification is necessary to invoke it. The framers of our Constitution fought for that right. They wanted to preserve it for you; so you could use it. You shouldn’t just give it away. However, I know from experience some people talk to the police because they believe exercising their right to remain silent will be used against them. In the non-justice system world, I understand that simply remaining silent can be used against the person who is reasonably expected to explain what happened. This is not how things work in the justice system.
The general rule in the justice system is that invoking your right to remain silent cannot be used against you. Remaining silent is not a reason to be arrested or to be charged with a crime. Indeed, at a jury trial, the fact that a defendant exercised his or her right to remain silent at the scene is not generally admissible. Said another way, the jury does not get to hear anything about a defendant exercising his or her right to remain silent. Generally speaking, if a prosecution witness or the prosecutor erroneously comments on a defendant’s exercise of his or her right to remain silent, a mistrial results. Even at a trial, if a defendant exercises his or her right not to testify, the jury is instructed not to hold this fact against the defendant. In short, there is no downside to simply remaining silent.
There are other valid reasons to remain silent. I have had several occasions to meet with and talk to people immediately after a shooting. This is a horrible time to offer a detailed, accurate and complete statement of what just occurred. The chances are high that any statement you make will not be complete. You are likely to recall details later upon further reflection. Later additions or modifications to any initial statement are likely to be treated by the prosecutor as convenient fabrications. Problems with accurate communication are common under the best of circumstances. These are close to the worst of circumstances.
Whatever statement you would offer is likely to be meticulously picked apart over many months by skilled prosecutors, detectives, and forensic experts and used against you many months later. The midst of an adrenaline filled shock is the worst time to offer an accurate and complete statement about what just happened. Don’t even think about offering a statement at this point!
Even imagining you could offer an accurate and complete statement about the shooting that just occurred, exactly what you say, or even the way you say it, may limit available legal theories for the defense. Said another way, there can be several possible and varied legal justifications for brandishing or discharging a weapon. Once you offer a detailed statement, the defense is likely locked into or out of a particular legal theory when others may have been available. For example, A.R.S. § 13-411 offers a justification for using deadly physical force that may indeed apply, but failure to verbalize the relevant motivation for the shooting as part of an initial statement could render this section more difficult to successfully invoke.
Additionally, a failure to immediately verbalize an honest but mistaken belief of fact as part of an initial statement could render the protections afforded by A.R.S. § 13-204 more difficult to utilize. Both of these sections can be utilized even if the defendant mentions the facts that support them for the first time at trial.
Another way offering even a detailed, complete and accurate statement can hurt your case, is by trusting the officer to memorialize your statement accurately. Many officers do not record initial statements at the scene. They scribble them down to be incorporated into a formal police report at a later time. I would not want to trust my freedom to the accuracy of even an officer acting in good faith. Honest mistakes occur.
I have personally represented clients in serious gun related felony criminal matters where police officers have erroneously written allegedly verbatim statements supposedly uttered by my client at the scene. In cases where a contemporaneous recording was also made, I have been able to prove that the allegedly verbatim statement attributed to my client by the officer in the police report was actually totally wrong. I have represented people in many other cases where my clients have adamantly denied making the statements reflected in the police report. When it is your word against the police officer, you will likely lose. As a final point here, I note that whenever my clients point out an erroneous statement contained in a police report, that statement is never helpful to their case. It seems to me that police officers never incorrectly include statements in police reports that are actually helpful to the defendant. The way to avoid this problem is to simply remain silent.
Ok, I’ll say it. Some cops lie. It shouldn’t be a surprise to anyone that there are good and bad people in all groups. I also know there are some police officers who believe only sworn police officers ought to have guns. I have personally spoken to some of these officers. Unless you personally know the police officer offering to take your statement, you have no idea who you are dealing with. Considering you may have decades of prison time hanging in the balance based on what other people believe occurred immediately before your shooting, I recommend you be safe and assume the worst. You probably know nothing about the officer attempting to persuade you to give a statement. I suggest you bite your tongue if necessary. Keep your mouth shut.
Regarding police officers, my experience has been that many of them understand and respect the rights of people to remain silent. I have personally represented police officers on many occasions in both internal affairs matters as well as against criminal charges. Most of the police officers I have discussed this issue with would themselves choose to remain silent after any shooting. Indeed, this is what they are taught. I know police officers who teach their kids not to talk to the police. Indeed, many police officers have admitted this to me. Even the police officers know not to talk to the police. I hope I have convinced you not to offer any statement after a shooting.
Although I hope I have convinced you not to offer a statement, I know better. I have had countless repeat clients talk to the police even after I have personally advised them not to do so beforehand. Some people like to talk to the police. It may have something to do with the training officers receive to elicit statements from people they investigate. It may also be our old fashioned but erroneous notions that all police officers are good people trying to do the right thing. I also suspect some people hope to talk the police officer out of possible charges or even an arrest. In shooting cases, it is the county attorney who generally decides whether to bring charges. None of these reasons are valid reasons to talk to the police, and I reject them all. Nobody has the power to make you talk.
I know that, despite my best efforts, some people will still talk to the police. If you are one of these people, I have a good option for you. I have authored a statement for you to read to the police anytime you determine you cannot resist the urge to talk to the police. For your convenience, this statement is also on the back of my business card. The statement is as follows:
“I refuse to consent to any search whatsoever. As such, I do not consent to a search of my premises, my person, my immediate location or any vehicle or effects. I hereby exercise my rights as enumerated by the Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution and Article Two of the Arizona Constitution. I demand to have my attorney present prior to and throughout any questioning at all. Additionally, I request to call my attorney right now for a private legal consultation.”
It is important to note that reading this statement will not prevent an officer from arresting you or a prosecutor from charging you with a crime. The decision to arrest or to charge is supposed to be based solely on the evidence and reasonable inferences from that evidence. However, reading this statement to an officer, at least, memorializes what you actually said to the officer.
If you ever forget my advice to remain silent, the police officer will likely remind you about my advice. In the justice system, we refer to this reminder as the Miranda warnings. Keep in mind that the officer is only required to inform you of the Miranda warnings in the event two things are occurring at the same time: 1. You are under arrest, and 2. You are being interrogated. There are four general parts to the Miranda warnings:
- You have the right to remain silent;
- Anything you say will be used against you in court;
- You have the right to an attorney; and
- If you can’t afford an attorney, one will be provided to you for free.
If a police officer ever conveys these warning to you, this should serve as a reminder to keep your mouth shut. In such an event, you are likely under arrest. Said another way, the officer has already determined that probable cause exists to believe you committed a crime. You are not likely to convince the officer otherwise in any event.
As you know, there are exceptions to every rule. Even my rule not to make any statements has exceptions. Here they are:
Exception #1 – If you have been involved in a shooting, someone should call 911. My preference is that you get someone other than yourself to immediately call 911 and convey a few simple things:
- There has been a shooting;
- Please send an ambulance;
- The address is….;
- Goodbye. (Hang up)
If you can’t find someone else to immediately call 911, you should do it yourself before making any other calls; even to your lawyer. Incidentally, remember that any competent lawyer is going to advise you not to make any statements. This advice shouldn’t come as a surprise to you.
After 911 has been called, you should immediately prepare for the arrival of the police. At this point, your immediate plan should be not to get shot by the police. I strongly suggest you secure your weapon before the police arrive and make sure nothing you do could possibly be construed as a threat to the police. Make sure the officers can clearly see your empty hands.
Exception #2 – Routine traffic stops. Although this article is specifically geared to gun-related matters, the advice to remain silent generally applies to all police investigations of any type. However, if you want to try to talk your way out of a speeding ticket, then you can opt to simply ignore my rule to remain silent. Although I recommend you cheerfully accept your ticket and move on with your life a tad bit less wealthy, feel free to respectfully interact with the officer at the side of the road with the purpose of trying to avoid the ticket and obtain a warning instead.
As a tip for this strategy, I have found that most officers really appreciate honesty and remorse after a traffic stop. Although admitting you were speeding will likely foil your chances of beating the ticket in court, it may just earn you a written warning with an old style peace officer. That said, I don’t offer any guarantees on this strategy, and I stand by my general advice to remain silent and move on with your life even during a routine traffic stop.
Exception #3 – After a detailed consultation with an experienced attorney. Even in a gun related case, it may ultimately be in your best interest to make a formal statement. However, this can only be determined after spending some quality time with an experienced criminal defense attorney who fully understands the facts and circumstances of the situation. I have on occasion, even in gun cases, issued formal statements either to the prosecutor or to be released publically that have greatly benefitted my client.
For example, my client Dr. Peter Steinmetz, who specifically authorized me to discuss his case publically, was arrested after peacefully carrying his AR-15 rifle into the unsecured portion of Sky Harbor Airport in Phoenix. It was his careful rotation of the weapon in order to allow him to sit that ultimately caused his arrest. His case garnered national media attention. As he was facing two counts of felony disorderly conduct with mandatory prison, we strategically called a press conference at which he offered a formal statement about the incident. Countless television, radio, and print media outlets crowded into my law firm to broadcast the statement. We ultimately convinced the prosecutor not to proceed with the case. Additionally, I actually got his AR-15 returned to him. It was a complete and total victory; as well as the right result.
Admittedly, issuing a public statement in a gun related case with pending felony criminal charges is rare indeed. However, skilled and experienced criminal defense lawyers tailor their actions to the unique specifics of the case. All cases are different. Although I offer general advice in this article, there is no substitute for immediately consulting an experienced criminal defense attorney any time the state threatens to put you in a cage.
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