By Seth Nadel
In part 1, I defined what Use of Force, “Castle Doctrine,” and “Stand Your Ground” mean from a layman’s point of view. As I am not a lawyer, questions must be directed to a lawyer in your state.
Here in part 2, I want to go into the things you should – and should not – do after using force. They fall into the categories of immediately after, shortly after, and forever after.
Keep in mind that Use Of Force means any and all kinds of force. If you have a confrontation with someone, and they run away without you drawing your gun, call 9-1-1. You may save a stranger from robbery, or even death! Plus, the bad guy may call and claim that you threatened him! So be a ‘good guy’ and call. I did once, and identified some burglars – and gave the police their license plate to boot!
When it comes to deadly force, take your cue from Law Enforcement policies which all state something like: “if there is an immediate threat of death or serious bodily harm, you are authorized to use deadly force.” Notice it does not say “you may shoot.” If a use of deadly force is justified, you may use any kind of deadly force. So, if you are holding a baseball bat and carrying a gun, using the baseball bat now may be more effective than dropping the bat and drawing your handgun. In the same way, if someone is pointing a gun at you while you are in your car, use your car (to escape or run them over). Don’t stop, get out, and go for your gun. (As a side note, which has more stopping power, a 2,000 pound Ford at 35 MPH or a 125g bullet at 1,200 FPS ?)
Let us presume there is only one threat, and whatever you did has stopped the threat. Now what? First, take a quick look around, to make sure there is only that one threat. There is no need to overdo this – I have seen folks practice looking all the way behind them immediately after shooting. In more than 50 years of research, I have never found a case of a second attacker behind the defender in a civilian incident. (In the Las Vegas incident, the 2nd shooter fired before the CCW carrier.) Law Enforcement is a completely different circumstance. Could there be someone else behind you? Yes. What is the likelihood? Tiny. But you may want to notice if there are witnesses to your actions, who could be helpful down the road.
Second, never assume your attacker is out of the fight! You should move, to cover if it is available. Many people get shot, are stunned, but then recover and resume their actions, so be ready. If they even start to move, give them loud, simple commands – and skip the profanity. You can expect to be recorded, and making profane threats does not enhance your image at trial. Tell them to lie down, and spread eagle. Do not hold a conversation with them – YOU are in command! If they get up and run away – let them! If you chase after them and later have to use deadly force, YOU may be seen as the attacker.
If you have additional ammo, this would be a good time to reload. Due to your intense target focus, you may not remember how many rounds you fired – in many cases folks only remember one or two, when they have fired 8 or 12 !
While continuing to watch the attacker from behind cover, call 9-1-1. When you carry a gun, you should carry a cell phone too! Remember that even a cell phone with no minutes left will make a 9-1-1 call. Also, keep in mind that all 9-1-1 calls are recorded, so think before you speak. You want to limit what you say to a minimum:
“My name is __, I am at __, someone just tried to kill me, I need police and an ambulance here! There was another person with this guy, he is dressed in __, and ran away toward __.”
Then, as my friend Mark Moritz says STFU – Say The Fewest Utterances – or SHUT UP! Do not hang up, but do not answer the dispatchers questions (unless they don’t understand where you are).
Leave your phone on, but set it down, so there will be a recording if you have to shoot the attacker again. Of course, you will want to verbalize what is happening – “STAY DOWN, DON’T REACH FOR THAT GUN, IF YOU DO I WILL SHOOT YOU!!” You will find this useful later in the process.
A tough decision is providing first aid. This is completely situational, and some of the factors are: Did any of his/her pals get away (they may come back), what is your level of first aid training, what first aid gear do you have right there with you, how close is professional help (EMTs will not approach until the police tell them the scene is secure), where is his weapon, what will you do with your weapon, and on and on. DO NOT leave the person alone to get medical supplies – they may come after you, or call 9-1-1 to claim you attacked them! DO NOT approach them, unless you have real training in approaching suspects at gunpoint. Things can go bad really quickly, and distance is your friend.
Generally, you are under no obligation to help your attacker, but every situation is different. In a big city, a crowd – an unfriendly crowd – may quickly gather. You may need to exit the area to a safe place, telling the 9-1-1 operator why, and where you are going.
When the police arrive, DO NOT turn towards them with your gun in your hand! That is one way to get shot by the officers, who are also under lots of stress. All they may know is “Report of shots fired at XXXX.” Follow their orders explicitly, but slowly. If they tell you to put the gun down, loudly say: “I am putting my gun down” and slowly place it on the ground. If they say: “Lie down on the ground,” do it! Don’t argue or object, or say: “No, I am the good guy!” They will not believe you – nor should they.
Once they feel they have the situation under control, they will ask you what happened. This is a very dangerous time for YOU. For most people, their emotions are in turmoil – part of them wants to celebrate the fact that they survived, while another part feels terrible that they have injured, or even killed someone. Consider how you would feel if you had to defend yourself against a female teenaged neighbor! She may have looked nice and been pleasant, while not revealing that she was addicted to methamphetamine. So, here is this pretty young girl that you know, lying at your feet!
Your first tendency is the worst one – to want to vent, to let all these emotions out to the first person who will listen. That police officer is NOT your friend – he/she is a disinterested collector of information, and your confused, emotional statement will be recorded. A simple statement of emotion may later be interpreted as a statement of guilt! You say, in the heat of the moment, “I did not mean to kill her!” intending it to mean: “I was trying to save my life and only wanted to stop her from hurting me. I wanted to do that without killing her if possible.” But in the calm, rational atmosphere of a courtroom, your statement makes you look as someone who did not know what they were doing, and overreacted. That can take you to prison.
I teach my students to say: “That person attacked me and tried to kill me. I defended myself. (If there was another attacker, give the police their description and where you last saw them.) I am very upset, and want to talk to my lawyer. I INVOKE MIRANDA!“ Then, shut up! Some officers will try to get you to talk to them, saying things like “If you don’t tell me what happened, I’m going to have to arrest you.” Say nothing – if they arrest you, submit. If they ask for your identity, give them your drivers license, but say nothing!
Why? The Supreme Court has ruled that merely remaining silent does NOT invoke your rights under Miranda v. Arizona. You must say the words. And if you invoke Miranda and then say anything, particularly in response to a police question, you have reversed your invocation. You cannot invoke Miranda and then talk about anything. It’s not a “I don’t want to talk about this, but I’ll talk about that” situation. You can ask for water, or medical help, but otherwise, remain silent.
This issue of making statements is critical to your financial and emotional survival. Expect to get sued – no matter how bad the person is/was, a reporter or lawyer will dig up someone to say: “He was a good kid, he was getting his life together, and trying to get off drugs. He was going to start college, there was no need for that person to shoot him!” This is all from someone who was not there! We have all heard these statements – after all, you don’t get on the evening news by saying: “He was a drug addict and a thief, it was only a matter of time before he killed somebody, it’s a good thing somebody stopped him!”
The lawyer suing you, or the prosecutor if criminal charges are brought against you, will try to get you to make multiple statements about the incident. Then they will compare each of your statements, seeking the smallest discrepancy, to discredit you on the stand. Initially, you only remember firing two shots, but later after your brain has time to process all of the information, you remember that you fired 4 or 8. So on the stand they bring this out, but in summation at the end of the trial, when you cannot say anything, they call you a liar. You did not lie, your memory of the event improved.
Police agencies give their officers 24 to 48 hours – one or two sleep cycles – before they require them to make any statements about a critical incident. You should do the same. Make one statement, keep copies of it, and refuse to make additional statements – refer to your original statement! And read your statement before making any other statements. You may be called by the other sides’ lawyers for a “deposition” where you make statements under oath. If you are “invited” to one, call your lawyer! They should be with you during the deposition, ready to object if you are asked any inappropriate questions.
Never – NEVER – talk to the media. There are no “off the record” moments, and all cameras and microphones are always on! Consult your attorney, and have him/her there with you if they say you should make a statement. And you do NOT have to talk to the other side’s investigator. Be suspicious of any “new friends” who want to talk to you about the event. They may be reporters, or investigators, so hold them off at a distance! In the media, the watchword is “If it bleeds, it leads” – so controversy sells papers. Expect to see incorrect data in the paper, sometimes planted by the other side, so you will call or write to “correct” it. This happened in my situation, and I had to let it slide.
Your demeanor counts as well. If someone asks how you feel about the incident, “being a tough guy” and saying anything like: “He tried to kill me, so I shot him. So what?” is not a good idea. No matter how bad he was, he still was a son, perhaps a brother, husband, and father. I suggest you hang your head and say something like “I wish he had just left me alone. I did not want to hurt him, but I was forced by his actions to defend myself.” Again, discuss this with your lawyer.
In the same vein, you should tell everything to your lawyer. You can also talk to your wife/husband, religious leader, and a doctor and/or counselor you are seeing in their professional capacity. But if you talk to your best friend, your buds at the bar, or anyone else, they can be compelled to come to court and tell what they think you said. This will likely not help your case.
The best thing of all is to remain alert, recognize potential hazardous situations, and avoid them. Threat recognition and avoidance is something you do all the time while you drive, expand it into all facets of your life.