The thoughts we’d like to share this month started as a discussion about the various factors we’ve observed in cases that make the news. The most evocative reports actually contain elements of self-defence. Still, the armed citizen in question has lost the claim that they were the innocent party in the incident. Some fundamentals were necessary to preserving your right to argue self-defence can be accounted almost like a Letterman Top Ten List. First, let’s outline the underlying and basic requirements for a legitimate claim of self-defence.
How to Spoil Your Self-Defense Case
by Art Joslin, J.D., Director of Legal Services
Laws across all jurisdictions generally have three things in common when claiming self-defence after using any level of force.
- You can’t be in the commission of a crime;
- You must be in a place you have a legal right to be; and
- You must have an honest and reasonable belief force is necessary to avoid being killed or crippled. Some states have worded these three elements differently, but the intent is the same.
So, how do people blow their self-defence case before they even start? Violating one of the above elements will do it for sure.
Several things need to be clarified in the aftermath of a justifiable shooting. I understand the advice of not talking to the police if you are so distraught, so emotionally out of control from adrenaline, that you can’t make coherent statements. However, one of my mentors, Massad Ayoob, for many decades past, developed a five-point checklist of facts police need to be aware of that is widely regarded as sound advice, and I teach it to my students, as well.
- Establish the active dynamic. The active dynamic is what the assailant did to you, not what you did to him. In a pool of blood, the assailant will look like the victim, and you need to establish what he did to you that caused you to use force.
- Advise police you will sign the complaint. Don’t say or do anything that makes the police think the roles of victim and assailant have reversed.
- Point out the evidence. You and the first responders just walked on stage and entered a chaotic scene. Evidence can get lost, transferred, destroyed, misplaced, and carried away. Early on, be sure you point out where that evidence has landed. This will bolster your credibility both in the moment and after the fact.
- Point out any witnesses. Before they leave the scene, point out any and all witnesses who saw what happened and those who may have heard what happened. Wouldn’t it help your case if you could have police interview a witness who heard you declare multiple times, “I don’t want to fight”? What about the witnesses who saw everything and can attest to you not being the initial aggressor? Wouldn’t that be helpful, too?
- Decline to answer any further questions without counsel. Other than identifying yourself to the police, politely decline to answer any additional questions until counsel can be retained. Always cooperate with the police. Let them know they will have your full cooperation once you have sought legal counsel. You should never decline to identify yourself to the police.
Violate the five-point checklist, and you might undoubtedly ruin your claim of self-defence. A few other ways you can destroy your claim of self-defence is to fail to do any of the following:
- Cooperate with the police. I’ve experienced far too many people who turned out to be not guilty of the initial crime but received additional charges for fighting with police. If the officer says you’re under arrest and are going to jail, don’t fight or argue with them. Those words mean that you are going to jail no matter what you do or say. Don’t be the one with added charges like resisting arrest or obstructing justice.
- Give the police your real name. Yes, it happens all too often. Trying to conceal your identity will always come back to bite you. If you genuinely believe you are justified in using force, why would you lie about your identity?
- Never lie to the police! Do I even have to bring this up? You will eventually get caught when witnesses are interviewed and evidence is presented. Here’s the point: If you lie, the prosecution will use this against you at trial. “You lied then; why should we believe you are telling the truth now?” You’ve lost all credibility with the judge and especially with the jurors. Unless your defence attorney can legitimately show your “lie” was made under duress, this is not a good place to be.
- Never conceal evidence. Concealing evidence will make police immediately believe you are guilty because you attempt to hide evidence. You can undoubtedly photograph evidence on a cellphone. Evidence such as where shell casings landed, witnesses in the immediate area, etc., could be helpful to your case.
- Do not be the initial aggressor. Even if you must resort to legitimate self-defence, starting the fight can spoil most chances of winning your case. Being the initial aggressor (and some states have added the factor of “provocation”) means you will be looked upon as the assailant. Most states allow you to regain your innocence by announcing in a loud, clear and concise manner that you do not want to fight, you’re leaving the fight, and you are retreating from that place. If the other party chooses to continue the battle after your announcement, they have become the initial aggressor. This changes the dynamic of the encounter.
- Do not provoke violence. If you are not the initial aggressor, do not invite the other party to use force. This is very akin to being the initial aggressor. You may not have started the fight, but choosing to stay in the fray and provoke your opponent can have similar repercussions. If you can safely retreat, why wouldn’t you?
- Do not use force too soon. Lawful firearm carriers often get into trouble because they go to the gun much too soon. Remember, deadly force can only be used against the threat of deadly force being used against you. That threat must be honest and reasonable. You cannot simply state you were in fear for your life without articulating what that threat was.
- Do not use force after the threat has passed. Deadly force can only be used against the threat of deadly force being used against you immediately and unavoidably. We’ve all read about situations where a person exited the immediate vicinity of the fight, went away, got a gun, returned, and got into a shooting. Likewise, if the aggressor withdraws and no longer poses a deadly threat, you may not use force to drive home your point, no matter how frightened or upset you may be.
- Don’t discuss your case with anyone but your attorney. The urge to speak to family, friends, and others about what happened will be overwhelming. Do not make any statements to the media. Let your attorney do that if they choose. Even telling your closest friends what happened, simply to “get it off your chest,” can prove disastrous. Remember, there is no lawful confidentiality accorded to statements you made to your best friend unless they happen to be your licensed counsellor or clergy. If you want to talk and get things out, do it with a professional.
- No bravado. The prosecution will be looking for photos and statements on social media to attempt to use against you. That t-shirt you wore on a fishing trip that reads, “Kill ’em all, let God sort ’em out” will not benefit your case when you’re at trial (or any other time). Remember, the government wants to portray you like a wild west, hair-trigger maniac who wants to go out and shoot up the town. Don’t supply evidence that they might use against you.
All of the points above are not meant nor intended to be legal advice. However, each issue is practical advice I would include in any firearm training class. I highly recommend getting the advice of competent legal counsel in your jurisdiction on these enumerated points as soon as you can. Remember, in the aftermath of a defensive encounter, you will have so much more to think and worry about. In a justifiable shooting, don’t be the one who accidentally or even purposely gives the other side ammunition to prosecute you with. Be safe and be well.
At Joslin, J.D, D.M.A. is the Network’s new Director of Legal Services. Contact him with your questions and comments at email@example.com.
To read more of this month’s journal, please click here.