How to lessen the chances of prosecution following a self defense shooting.

[Radny97]

Bear with me here. I’ll start by saying that I am a practicing attorney in a very gun friendly state, but I don’t do any criminal or firearms law on a regular basis. I’ve been thinking about some of the factors that one should take into consideration when carrying in order to lessen the chances of being prosecuted after you’ve been involved in a legal self defense shooting. I’ll emphasize that there’s no need in this thread to debate whether a shooting is legal or not. The underlying premise is that you were legally carrying, you rationally perceived a direct and imminent deadly threat, you engaged the threat with your firearm until the threat was neutralized. So the underlying premise is that you did nothing wrong. But we all know that sometimes the investigators don’t get all the facts at first and may have thought you did something wrong and you end up getting charged. Or you live in an area that is not gun friendly or you have an overly zealous or anti gun prosecutor.
So these are things I think you can do that will either assist the investigators in concluding that you did nothing wrong, or help the prosecutor conclude that your case is unclear enough that they don’t want to bring the case, or that will help the judge or jury acquit you.
Also to be clear, the law doesn’t require any of these things and no one has to do them, but I think they would help.

1. As soon as the threat is neutralized, render first aid to the person you just shot. They fall down, you get the weapon out of their hand and away, pat their body down to ensure there’s no other weapons, call 911 on speaker and then try to stop the bleeding while telling the dispatcher what happened and ask for help and direction to try to help the person who just attacked you. Now there’s a recorded call of you caring about your attackers life, and when investigators arrive, that first impression will be critical and there you are trying to help. They’ll immediately perceive you as a good guy. You’ll get a more favorable investigative report and it will play very well to judge and jury.

2. Retreat if possible. We all know that stand your ground laws are being passed in some areas, and that is a very good thing. But it’s a legal protection you should hope to not have to take advantage of. You’re not law enforcement. You’re not a hero. You don’t have to run toward the danger. You don’t have to confront bad guys just because you’ve watched a lot of TV or trained every week at the range. This isn’t the big chance you’ve trained for, this is a crisis you want to avoid. If you can get away without you or others getting hurt, do it. You may not be legally required to, and could legitimately stand your ground, but there’s no requirement to do that if you have other options, and it will play well if you tried to retreat before you eventually had to draw and defend yourself.

There’s other things too, which I’m sure will be brought up, like carrying factory ammo and not handloads, etc. but these two are the big two in my opinion. I look forward to everyone else’s thoughts.


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[DMK]

In Mass Ayoob's book "Deadly Force: Understanding Your Right to Self Defense", he described a case where the defender did both of these things. (An excellent book BTW, I highly recommend for anyone putting any consideration to self defense. George Zimmerman's trial is also discussed - it's very different from the media's portrayal).

The man was with his family in the street in front of his house, just returning from a bike ride. He was accosted and attacked by two women who lived across the street. One was a professional in hand to hand combat. The boyfriend of one of the women saw the scuffle and joined in. Now three against one.

The defender retreated to his front lawn where he was knocked down and was being bludgeoned (with a rock I believe). He started to lose consciousness. At this point he drew his Glock and fired one round hitting one of the women in the leg.

The attackers stopped and the defender had his wife get a first aid kit. He unloaded his Glock and left it on the porch of his house. He then rendered first aid to the woman with the GSW.

When the police arrived, they asked everyone what happened and immediately handcuffed and detained the defender in the police car. He was held in a room alone for hours and wasn't questioned at all.

The women stated that he went to their house and shot the one woman there, even though the shell casing was on his front lawn and that's where everyone was found when the police arrived.

He was indicted and it went to jury trial, costing him hundreds of thousands and his job. . Eventually, the three attackers sued him and perjured themselves with two different stories. One for the criminal trial and a different story for the civil trial. It turned out that for the civil trial they changed their story to tell the truth about where the shooting happened because his homeowners insurance would not have paid out if the incident happened on the woman's property.

 

[shurshot]

My advice... AVOID STUPID. Avoid Stupid people, stupid places, stupid times and stupid things. Lose the ego too.

This will greatly lessen the chances of being injured, killed, robbed and or ever needing a criminal defense attorney.

 

[Double Naught Spy]

1. As soon as the threat is neutralized, render first aid to the person you just shot. They fall down, you get the weapon out of their hand and away, pat their body down to ensure there’s no other weapons, call 911 on speaker and then try to stop the bleeding while telling the dispatcher what happened and ask for help and direction to try to help the person who just attacked you. Now there’s a recorded call of you caring about your attackers life, and when investigators arrive, that first impression will be critical and there you are trying to help. They’ll immediately perceive you as a good guy.

You mean that as an attorney, you are suggesting that after a shooting, that I should close the distance to the threat I only believe is neutralized, disarm the person, touch them all over looking for more weapons, then call 911 and, without my attorney present, go on the record and tell 911 what happened?

What could go wrong???

 

[Radny97]

You mean that as an attorney, you are suggesting that after a shooting, that I should close the distance to the threat I only believe is neutralized, disarm the person, touch them all over looking for more weapons, then call 911 and, without my attorney present, go on the record and tell 911 what happened?

What could go wrong???

What could go wrong if you shot someone and didn’t try to de-escalate first or render assistance afterwards?
Are you an attorney? Because i did two trials last month. I know what plays well before a judge and jury and what doesn’t.
So yes, attempting to de-escalate and attempting to render aid afterwards will indeed reduce the chance you get charged, and will reduce the chance of a conviction if you do get charged. That’s my legal opinion.


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[TomNJVA]

How people will interpret your actions is hard to predict. Rendering first aid to the person you shot, for example, could be presented by an anti-gun or win-hungry prosecutor as an act of guilt or desperation because you knew you were wrong to shoot and were just trying to avoid a manslaughter charge. And if the person dies the lawyer could say you were not trying to help but actually trying to kill the only witness. Lots of ways it could go.

I am not a lawyer but I have worked with many and know they can be very clever. I would be inclined to call 911 as soon as possible once I knew the threat has ended and ask them to send help for the shot person. I am also not a doctor and would rather not touch the person myself unless the 911 operator asks me to and guides me. If I had the presence of mind I might ask the operator what I should do.

As for explaining what happened, in my emotional state at the moment I would stick to basic facts and avoid detail until I have had time to recover and consult counsel. The last thing you want to do is make an error when stating some detail, no matter how minor, and have to change your explanation later when evidence at the scene contradicts it.

As for retreating, I agree fully. I would do whatever I could to avoid shooting a person, within the context of my emotional state at the time. Shooting is the last resort to save your life or that of another innocent. It must be driven by fear, not anger, revenge, or machoism.

 

[littlebikerider]

I must say, this is the first time I have ever seen an attorney post a free "legal opinion", especially in something as difficult as legal defense of a self-defense situation.

That said, it seems to always come down to "my" self-defense situation and "my" lawyer. Everything else is really just conversation.

 

[Mike38]

As soon as the threat is neutralized, render first aid to the person you just shot.

I am an EMT, and this goes against what we are taught. Yes, believe it or not, an Emergency Medical Technician's first thing on the list is to not put themselves in harm's way. You sit back in a safe location and let the Police determine when it's safe to proceed. Even if you know the person is bleeding out, the area is considered unsafe until Police give the all clear.

If the person is obviously unconscious, that may change things, especially if I was the one that put him in that state. It may be safe for you to check for additional weapons and proceed with medical care. But if that person is conscious and able to move, sorry, I'm staying back. He is still a threat, because he just tried to cause great bodily harm to, or tried to kill, me.

 

[Aguila Blanca]

What could go wrong if you shot someone and didn’t try to de-escalate first or render assistance afterwards?
Are you an attorney? Because i did two trials last month. I know what plays well before a judge and jury and what doesn’t.
So yes, attempting to de-escalate and attempting to render aid afterwards will indeed reduce the chance you get charged, and will reduce the chance of a conviction if you do get charged. That’s my legal opinion.

That's your legal opinion, and you are entitled to it. But nobody here is paying you to act as their attorney, so nobody here has any reason to accept or follow your advice, as well intended as it may be, if they don't believe it.

You claim that this is based on TWO trials, so you know what plays well in court. Respectfully, on the basis of your statements all you know is what happened in two cases -- and you haven't told us anything about the nature, location, or disposition of those two cases. I am not an attorney, but I have been in court many times as an expert witness. I have seen judges make rulings that absolutely defy common sense. Yet you are telling us that doing these things will not only help us to prevail at trial, but will also largely preclude even being charged.

I'm sorry, but I have to disagree.

Each incident must be viewed as unique. Whether or not you might be charged depends on myriad factors, of which attempted deescalation and attempts to render aid ex post facto are only two. Other factors include the laws of the locality, the presence or absence of witnesses (and the witnesses' mental acuity and bias), the bias of investigating police officers, and the bias of the local prosecutor. In some jurisdictions, any shooting must go before a grand jury, so now you're facing the collective bias of a panel of people you've never met and you don't even get to tell your side of the story.

I don't think many people would argue that a reasonable attempt to deescalate is a bad idea. It's a good idea. But if deescalation fails and you have to shoot someone in self defense, I respectfully reject your advice to render first aid. Unless the attacker is dead, he/she is still a threat if I am within his/her reach. Most advice I have seen on this -- including from attorneys -- is to immediately call 9-1-1 and tell them to send medical help. I don't know what you can effectively do beyond this anyway. Most of us aren't qualified EMTs or paramedics, and most of us don't carry a trauma kit on our bat belt. I see nothing to be gained and much to be lost by placing myself within arms' reach of someone who just attacked me.

 

[12-34hom]

The idea of situational awareness cant be over stated as one poster already observed. If involved in a self defensive i would, Call 911 asap as long as i could safely do so. Give location and request medical help for injured person. Remain calm. Stay away from person who is injured. Once law enforcement arrives on scene, follow there commands to the letter, Get legal help and keep your mouth shut until you are. 12-34hom

 

[Radny97]

As for explaining what happened, in my emotional state at the moment I would stick to basic facts and avoid detail until I have had time to recover and consult counsel. The last thing you want to do is make an error when stating some detail, no matter how minor, and have to change your explanation later when evidence at the scene contradicts it.

Agreed.


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[Radny97]

Aguila Blanca, i completely agree that I’m just throwing my unsolicited opinion out there (that is one purpose of forums for after all) and i also completely agree that judges and juries do completely unexpected things that at times defy logic. I’ve seen it too.

But trying to help after a shooting will on average help your situation. If rendering first aid is potentially dangerous or unhelpful in that particular circumstance, don’t do it. But if doing so is safe and reasonable in the circumstances, then doing so will likely help you defend against future accusations.

And to be clear, i’ve done many many trials. I mentioned that i did two last month only to show the frequency with which i deal with judge and jury making decisions.

And yes you’re absolutely correct that the personalities, politics, jurisdictions and many other factors will have a greater effect on whether you get charged or not. But most of those things would be out of the persons control. These two acts, and some others, are within our control.


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[Shane Tuttle]

Because i did two trials last month. I know what plays well before a judge and jury and what doesn’t.

And, did you state you're in a "gun friendly" state?

Wherever you are, I'm glad your experiences with the judges in your area are seemingly in agreement with your assertions.

I'm sure your intentions are honorable. But we also have very, very unfriendly gun states, as well. To top it off, there are anti-gun judges even within gun friendly states. Respectfully, and in short, I believe you're painting with really broad brush that can be good advice in your courtroom, yet horrible advice in another court room.

 

[44 AMP]

1. As soon as the threat is neutralized, render first aid to the person you just shot.

I don't think that is actually a good idea. It might SEEM to be the compassionate and moral thing to do, but is it a good idea, really??

You might be putting yourself at lethal risk. You might even be putting them at further lethal risk. My state has a "good samaritan" law that gives some legal protection to "unqualified" people who render aid. But there is no legal requirement for them render aid. EMTs and other trained, certified medical professionals are required to render aid, under conditions where it is safe for them to do so.

I don't know about you, but I know how I would feel if I got AIDS or Covid 19 or anything else dangerous because I had close physical contact with the blood or body fluids of someone I had to shoot just moments before.

There are folks who will tell you not to say anything to the cops without a lawyer present. This appears to be sound advice, based on the simple fact that what you say means one thing to you and can mean something else entirely to the police (or in court)

MY COUSIN VINNY was on tv last night, and it has a scene in it that amply demonstrates this. On being asked "at what point did you shoot the clerk?" Ralph Macchio's character replies "I shot the clerk???? I shot the clerk?????" in a disbelieving tone of voice (and note the questionmarks)
The police took that as his confession that he shot the clerk and so testified in court that he confessed, reading his statement in a flat, factual tone of voice "I shot the clerk."

While fiction, this illustrates the kind of thing that CAN happen.

 

[Frisco]

Okay, number one...

After a justified self defense shooting, you are under NO obligation to PERSONALLY render aid. You are especially not under any obligation to render aid if it will expose you to an elevated risk of further attack from the attacker who forced you to fire in defense of your life in the first place, or any friends they may have who might renew an attack upon you.

It is not at all uncommon to have a downed, presumed dead, attacker "come back to life" and renew an attack. I have seen it more than once during my own decades long career as an LEO. Both officers and civilians involved in critical incidents have been attacked and even killed by attackers who appeared to be dead or unconscious. It happens with enough frequency to be a real concern.

***80-85% of all handgun wounds are SURVIVED...so there is a high chance that while down, your attacker is not dead or even incapacitated enough NOT to renew an attack, they may have simply given up and giving them the chance to get within arms length again may "help them to choose" to renew the attack***

Many attacks are carried out by multiple assailants. Let's say, you have been forced to fire to stop an attack, but only one is down and the others are still being held at (your) gun point. That sure adds a fly to the ointment doesn't it?

Simply asking 911 to "send an ambulance" is, de facto, showing compassion and trying to assure QUALIFIED MEDICAL ASSISTANCE responds along with responding officers will be recorded, entered into evidence, and thus also "look good to a jury".

What will NOT "look good to a jury" is YOU bending over a downed attacker, and perceiving a renewed attack upon your person, being forced to fire again and looking like you just delivered a punitive, vengeful, or coupe de grace shot, to any potential witnesses, even honest ones, and give any dishonest ones the ability to say "He shot that innocent man when he was down!" or "He executed that poor victim!".

While "rendering this aid"....which would require at least one hand...are you going to put your defensive sidearm away or your phone? Which one are you willing to put down and lose immediate physical control of?

This is a whole can of worms where I could cite dozens more bad ideas in following the bad advice of the initial poster.

Call 911, ask for an ambulance. Call it good. Remember, this chud taking the ambient temperature challenge just tried to cause you "death or grave bodily harm", otherwise you wouldn't have been forced to fire to stop the attack.

"911, what is your emergency?"

"I was attacked and forced to fire to defend my life. The attacker is down and in need of medical assistance. I need the police and an ambulance at the corner of OH CRAP STREET and POOP JUST GOT REAL AVENUE. I am wearing a pink IZOD shirt and white docker trousers".

"Okay, stay on the line. I have assistance on the way".

Then leave the line open while keeping your pie hole SHUT unless the active dynamic changes drastically like there is a renewed attack by the initial assailant, or friends of the assailant.

Do NOT answer any questions of detail. No estimation of ow many shots you fired or give ANY other accounts of the incident. ONLY say what you see and hear RIGHT now.

"I hear the sirens"

"There is a crowd gathering...how long until officers arrive"

"Officers are here, I am holstering my weapon and holding up my hands".

Dealing with responding officers is next...but I don't feel like going into that right now.

 

[SIGSHR]

Then there is the matter of the "safe room", the idea that you shelter in place until the LEOs arrive.

 

[JohnKSa]

1. As soon as the threat is neutralized, render first aid to the person you just shot. They fall down, you get the weapon out of their hand and away, pat their body down to ensure there’s no other weapons, call 911 on speaker and then try to stop the bleeding while telling the dispatcher what happened and ask for help and direction to try to help the person who just attacked you. Now there’s a recorded call of you caring about your attackers life, and when investigators arrive, that first impression will be critical and there you are trying to help. They’ll immediately perceive you as a good guy. You’ll get a more favorable investigative report and it will play very well to judge and jury.

Inadvisable.

The police won't even do this until after the person is handcuffed and searched. If you watch videos of police shootings, it's common for them to hang back from the downed attacker until there are several police on scene for cover and assistance. Then they don gloves to prevent exposure to body fluids and maybe face shields. Then they approach the attacker to render aid.

I don't carry handcuffs, nor am I trained to use them. I don't have PPE to prevent exposure to body fluids. I am not accompanied by other persons who can provide cover.

I agree that concern for the attacker's wellbeing should be demonstrated, but I will demonstrate my concern by summoning help, not by trying to render aid myself. There's just too much risk in the latter.

What could go wrong if you shot someone and didn’t try to de-escalate first or render assistance afterwards?

I read the post you're responding to and I don't see any comment about not attempting to de-escalate.

 

[Double Naught Spy]

What could go wrong if you shot someone and didn’t try to de-escalate first or render assistance afterwards?
Are you an attorney? Because i did two trials last month. I know what plays well before a judge and jury and what doesn’t.
So yes, attempting to de-escalate and attempting to render aid afterwards will indeed reduce the chance you get charged, and will reduce the chance of a conviction if you do get charged. That’s my legal opinion.

While I appreciate how your response changed somewhat between the first to posts and I appreciate the "I'm a lawyer, are you?" authority play (nice logic error, BTW), let's look at how wrong your legal opinion can be, particularly since you gave advice on what to do that is outside of the realm of law and more in the realm of tactics.

What could go wrong? So many things you gave advice on doing could go wrong. Your advice, based on an unrealistic hypothetical situation, may be less than helpful in real life situations.

Let's look at your premises first, shall we?

I’ll emphasize that there’s no need in this thread to debate whether a shooting is legal or not. The underlying premise is that you were legally carrying, you rationally perceived a direct and imminent deadly threat, you engaged the threat with your firearm until the threat was neutralized. So the underlying premise is that you did nothing wrong.

Please tell me, in your extensive non-criminal legal experience, how often it is known, understood, and accepted that a "self defense" shooting is 100% justified and without any sort of legal encumbrances at the moment of the shooting? You have assumed that it is 100% good and that the defender has nothing to worry about concerning speaking to the cops. I am sorry, but that is so unrealistic to just be stupid. However, it is your legal opinion that you should just freely talk to the 911 operator on record. Wow. Your legal opinion

You have indicated that as the winner of the battle that we should not only just stay in the immediate area of the conflict, but should actually deal with the adversary that we only BELIEVE to be neutralized, and then to go up to within close proximity of the person and to disarm the person and to then touch him all over in search of more weapons. In what world are you 1000% sure that this is actually safe to do? Just curious as closing ground on a threat of unknown status means staying in the danger zone longer than may be prudent. Exposing yourself to danger longer than necessary may look pretty in court, but may be meaningless if you end up dead because you were trying to be sure to look good in court and not actually taking proper care of yourself. So how certain of you that the threat is actually neutralized? You probably remember and have studied what happened to Trooper Mark Coates. He neutralized his threat with several rounds (5 hits, mostly torso, IIRC) from his .357 and then was sure to get on the radio to report what happened and to get help when the "neutralized" threat shot him one time with a .22 at close range. Under the stress of the situation, mistakes were made and the threat was not actually neutralized. The threat didn't even die from his wounds. However, Trooper Coates died of his. No doubt his actions would have looked good to others, but he is DEAD.

Here is a video of the event. You can see Coates has not taken cover and is in close enough proximity to the threat that you see the muzzle flash of the shot that kills Coates...https://www.youtube.com/watch?v=2FraE77l4fI&feature=youtu.be

I think you have assumed that there is one and only one adversary, right? You may have only seen one, but does that mean that there is only one? What about his buddy that you failed to recognize as being part of the situation? Such oversights have proven to be a bad mistake to make for many cops, and for some citizens. For example, here is another case I am sure you have considered in giving your legal opinion. Your remember the husband and wife cop killers in Las Vegas who next entered a Walmart and the husband fired his gun into the air and announced that this was a revolution and the citizen good guy concealed carrier moved to stop the husband, walking right in front of the wife, who then killed him? https://abcnews.go.com/US/las-vegas-cop-killers-husband-wife-team/story?id=24052877

This is a classic self defense shooting teaching example that is used at gun schools all over the country, right? In your premise, this could not happen. In reality, it very much could and has happened. It is just bothersome that you are so willing to advise people to throw away their safety based on your unrealistic set of premises where you have god-like omnipotence of what is going on in real time.

Rendering aid afterwards. Great. In what manner? Most people don't carry PPE and are not prepared for biohazard fluids (most notably, blood). Again, personal safety. Also, how many people want to voluntarily risk their lives rendering aid the person that maybe just tried to kill them?

I noticed in your reply that you left out the part about going on record to the 911 operator about what happened. What could go wrong there? LOTS of things could go wrong there and quite frankly, I am surprised that your legal opinion included going on record to tell what all happened without getting legal counsel, first. How many people do you know, that after the adrenaline rush of combat are apt to speak eloquently and accurately about what happened in a manner that won't open doors to the prosecution?
Ideally, a person involved in a self defense shooting will say exactly the right things, none of the wrong things, and nothing that would be misconstrued, but how likely is that going to be?

So what could go wrong? You say the wrong thing to the 911 operator and that ends up getting you arrested and then being used against you at trial.

 

[44 AMP]

Ideally, a person involved in a self defense shooting will say exactly the right things, none of the wrong things, and nothing that would be misconstrued, but how likely is that going to be?

Not very likely. People have a strong tendency to speak "conversationally" and be sloppy and imprecise, because "everyone knows what you mean" and most of the time, it doesn't really matter.

BUT...

that same exact pattern and terms can mean one thing to you, and something else to the court (including the cops and DA, etc.)

Sure, its just "word games" but playing word games is what lawyers, judges, prosecutors and the LAW do.

Here's an example of a common everyday statement (explained to me by a lawyer)

"I pulled up to the stop sign, waited a minute, looked both ways then entered the intersection..."

You know what you meant by "minute" you meant a brief period of time. But what you have just told the court (perhaps testified to under oath?) is that you waited a full 60 seconds, then entered the intersection.

SO, if it comes out that you did NOT wait a full 60 seconds, then your credibility is suspect, at best, and at worst you might have (unwittingly) committed perjury.

All because you said "minute" instead of "moment". In a legal setting, the misuse or misapplication OF A SINGLE WORD can have a huge impact that it does not have in ordinary day to day life.

This is the purpose of having a lawyer present when speaking to the police, or any "officer of the court", to ensure that your statements are done using words that are difficult to misinterpret or misconstrue.

Always remember that what you might consider an honest and harmless mistake can be something someone else considers a willfull and deliberate attempt to deceive. (and that makes YOU the "bad guy")

 

[zoo]

Radny97 you deserve a special brownie for being willing to come into this thread as a lawyer and speak your opinion. I get the point you are trying to make even if I don't agree with it. From a tactical/survival perspective, your advice is TERRIBLE. In a situation like that, staying alive is the priority. But then, like I said, you are speaking as a lawyer and I do I appreciate your effort.

Also, my lawyers have always recommended against providing details to the police before having consulted with legal counsel. I was really surprised to see you state otherwise.