Lee’s note: This contribution come from Michael Sheesley – a true expert – a practicing lawyer, firearms trainer and lethal force expert living on St. Thomas, USVI. His advice, especially the section on the perils of multiple statements, is priceless.
Don’t talk too much!
by Michael Sheesley, Esq.
You have just used your firearm in self defense, what do you do next? This article will go through the suggested steps gathered from training, interviews and research into shootings and the law.
Generally speaking there must be an immediate, unavoidable, threat of death to the innocent in order to legally exercise the use of lethal force.
A home invasion, active shooter in a workplace or public environment or possibly an attempted robbery or carjacking are situations that may occur which cause you to exercise your legal right to employ lethal force to defend yourself. Whether or not you actually fire a shot, hit your assailant or merely effectuate a psychological stop, the procedure that you should follow after the use of lethal force does not largely change.
First get yourself and any loved ones in a tactically sound defensive position. Utilize cover and concealment to the extent possible. Remember not to ‘crowd cover’, keep back from the cover a few feet if possible to avoid ricochets from hitting you should your assailant return any fire. Re-holster your firearm while maintaining a full firing grip on your weapon. If you carry your firearm in a pocket holster, shoulder holster, ankle holster or some type of bag keep your firearm in a low ready or compressed ready position. If the bad guy is lying on the ground make sure that you can visually observe the bad guy and keep him illuminated with your flashlight.
Second, I would suggest that you immediately call your ‘trusted other’. This should be a person that has the numbers of your attorney and loved ones. You should have previously discussed with this person their role should you become involved in the use of lethal force. This person should be able to call your lawyer and your loved ones and calmly explain to them that you were involved in a situation and that you will contact them as soon as possible. This call should be short, no longer than one minute.
An example would be a call to my “trusted other” who we will call Frank.
Me: “Frank, I’ve just been involved in an incident. There was an attempted robbery when I was doing my night deposit. I’m ok. I am at Bank XYZ at 1st and Main Street.”
Frank: “I’ll get in touch with your wife and lawyer. I’ll try to call the police station in about an hour if I don’t hear from you.”
Third, call 911. Immediately identify your location. Identify that you are the good guy and describe what you are wearing. Request an ambulance. Keep this call short (are you starting to notice a trend?). Remember all 911 calls are recorded and can and will be used as evidence in a criminal or civil proceeding. Do not use inflammatory statements, racial, ethnic or gender stereotypes or profanity. There is no benefit to having a call played for a jury where you are yelling at the bad guy to “stay down you scumbag motherf****r or I will shoot you in your face a**hole!”
911 operators are trained to keep you on the phone as long as possible. If you are holding a bad guy at gunpoint that may still be a threat you don’t need any life-threatening distractions. Be polite but give the 911 operator the required information to identify you and hang up. If you need to continue to give verbal commands to control the bad guy, do so but keep them free from profanity. Assume everything is being recorded.
Remember when the police arrive move slowly, purposefully and listen to instructions. Law enforcement officials will be responding to a call, probably at night, where they have a skeleton outline of information and are aware that a firearm or firearms are on the scene and possibly have been used. These professionals are coming into a largely unknown situation with their adrenaline flowing and making decisions that could affect their own safety. This is why it is important for you to identify to the 911 operator that you are the good guy and describe what you are wearing.
When the police arrive immediately identify yourself as the good guy. Identify the bad guy and state that you were in fear for your life. Identify any evidence which may include shell casings, weapons that the bad guy may have or had, broken windows, crowbars, etc. Convey to the officers that you are willing to cooperate. Articulate that you do not feel well and would like to be taken to the hospital. Finally, politely tell the officers that for the time being you would like to invoke your constitutional right to remain silent and not give any statements until you have had the opportunity to speak with your lawyer. You will have to re-invoke your constitutional rights every time a new officer speaks with you.
You can put together a coherent statement, with the help and advice of your lawyer, at a later time. In today’s world we have to assume that everything we do is being recorded by both audio and visual means. In a stressful situation time, distance and details get distorted. Did you fire five shots or seven? Was the bad guy 5 feet away or 20 feet? Police officers involved in a shooting generally are given 24 hours before a statement is taken from them. This is to allow the officers to process what happened and regain their composure and make an accurate statement. You do not want to rush to give a statement and have that statement be factually different from what a video recording or an investigation of the scene may show. This can make you look like you are trying to hide something or even worse that you are lying to the police. It is also important to give a single comprehensive statement. Multiple statements can lead to minor inconsistencies which can be twisted by an ambitious prosecutor to appear that you are weaving a web of lies.
It is very likely that the officers will state that you are not being charged with a crime and you have nothing to worry about so you can just go ahead and make a statement. Statements made without your lawyer are dangerous. If you live in a jurisdiction where your permit has restrictions associated with it you need to be careful that any statements that you make are not admissions to violating the terms and conditions of your carry permit. It may be true that you have nothing to worry about from a criminal standpoint however any statement that you give can be used in a civil lawsuit. It is not unheard of for the bad guy to sue the good guy for shooting him when he was robbing the good guy or committing a burglary.
What if drawing your firearm was enough to cause a psychological stop or you fired and the bad guy ran away? The first party to call the police is generally considered the victim. The above procedure will not change drastically with the exception that there may not be a bad guy lying on the ground with a bullet in him.
Are there times when you should give a short statement to police? Yes. This is dependent on where you live and the legal and political culture. If you shoot someone in your home and you live in Texas you likely will have no problems whatsoever. If you live in California on the other hand you are better off keeping your mouth shut. This is why as responsible gun owners it is important to know not only the black letter law but the nuances that exist based on where you reside. It is best to speak with an attorney about this and to do so before an incident occurs.
Following these procedures will go a long way to keeping you out of trouble both criminally and civilly in the event of your use of force.
Michael Sheesley is a practicing attorney, a firearms instructor and a partner in Virgin Arms, a FFL holder serving the law enforcement and civilian community in the U.S. Virgin Islands. Mr. Sheesley regularly deals with criminal matters involving the use of lethal force and is a consultant to expert witnesses. Mr. Sheesley is a member of the International Association of Law Enforcement Firearms Instructors and the International Law Enforcement Educators and Trainers Association. He can be contacted at: firstname.lastname@example.org