Several Strategies for the Aftermath of Self-Defense
How NOT To Interact With the Police
This “Case of the Week” involves a shooting death in Oconee County, GA one that on the surface has the trappings of self-defense. The purported defender promptly shredded those trappings from the first moment he spoke with law enforcement.
In other words, this is a classic example of how not to interact with police in the aftermath of a use-of-force event.
In our Law of Self Defense LEVEL 1 Core Class we talk at length, almost an hour, about the four strategies for interacting with the police.
Just Walk Away: Guts Any Claim of Self-Defense
First, don’t interact with police at all, just walk away. There are several problems with this approach. If your use of force was legitimate self-defense, you have a moral obligation to have your actions examined for consistency with the law. Also, if you just walk away, you’ve profoundly undermined any claim of self-defense you might wish to make in the future—it will look like you “ran away.” Finally, walking away doesn’t mean you won’t be identified and forced to interact. Cameras and witnesses are everywhere, including the camera-equipped smartphones that are ubiquitous today.
“Say Nothing!”: Silence MAY Be Used Against You
Then there’s the “say nothing to the police” approach, that so many advocate. There are some obvious logical faults in the “say nothing” approach. Does “say nothing” mean you’re not going to call 911? Because calling 911 is saying something to the police. And if you’re not going to call 911, eventually you’re going to walk away from the scene, and then you’re actually adopting the “flee the scene” strategy.
There are also legal faults in the “say nothing” approach, because contrary to common belief your silence at the scene can be used against you in court as circumstantial evidence of guilt, according to the Supreme Court, at least prior to you either being Mirandized or asserting your right to silence. Some states do have their own prohibition on the use of such silence in court, but unless you know whether YOUR state does you have no idea whether such silence can be used in court as circumstantial evidence of guilt.
That said, if you’re an actual criminal, or if you’re a person who has not thought through in any detail, the “say nothing” approach may be your best bet, despite it’s shortcomings.
“Say Little Approach”: Professional, but Not For Everyone
The third approach is the “say little approach.” Here you limit your communications with police to a few very specific pieces of information. The goal here is to not leave value on the table in terms of your prospective legal defense by simply saying nothing, while at the same time not putting yourself in a position where you might say something incriminating that can be used against you.
This is what I consider the “professional approach” for people who have considered their prospective interaction with the police carefully and who are confident how they will conduct themselves under the stress of having survived a life-threatening attack. It is not, however, the optimal approach for everybody, especially not for people who might slip into the fourth approach. This is the approach we cover in the most detail in our Law of Self Defense LEVEL 1 Class.
“Blather Approach”: Almost Certain to Cause Trouble
That fourth approach is what I call the “blather approach.” This is where the defender decides to explain the entirety of the situation to the responding officers, in every detail—details which they will invariably have gotten wrong, simply because of the way the human brain captures, stores, and recalls information under stress. This is why police officers involved in a use-of-force event are given 24 or 48 or 72 hours after a use-of-force event to make a statement, so their brains flooded with adrenaline and other stress chemicals can settle down to a more normal state of function. Naturally, I never recommend the “blather” approach.
“Lie to the Police Approach”: Oofah
In this “Case of the Week” we see a fifth approach I don’t really discuss in class, except to tell students “Don’t do this!” It’s a kind of “self-destruct” approach that combines the “blather approach” with consciousness of guilt evidence. It involves blathering to the officers, and having that blathering consist of demonstrable lies.
In this case, the Defendant initially told 911 that he’d shot an intruder. Then he told responding deputies that the man he shot was a stranger to him. He also shared many other details, many of which turned out to be incorrect.
In fact, the Victim was a recent acquaintance of the Defendant whom the Defendant had invited to come visit. They’d engaged in a night of heavy drinking, which concluded in the Defendant hitting the Victim in the head with a popcorn kettle hard enough to drench it in the Victim’s blood. There was a blood trail from that initial point of attack to where the Victim was found 20 feet away behind a sofa, where he suffered a single gunshot wound to the face. The Defendant, in contrast had only minor injuries, sufficient to indicate a possible fight between the two men.
The Defendant now claims he woke up to the Victim choking him. Unable to breathe, and fighting for his life, he shot the Victim in self-defense. He has no explanation for the popcorn kettle, nor can he remember how he retrieved his gun, a lack of memory he blames on being intoxicated.
Folks, that’s not a great self-defense narrative under any circumstances. When combined with his initial tale of having shot an intruder, a stranger, in his home, however, it’s a self-defense narrative that holds no water whatever.
Whatever Strategy You Choose, Don’t Lie!
Whatever strategy you choose in terms of interacting with the police is a decision only you can make. But combine any strategy with lying to the police and you’ve sunk any prospect you might have had for a viable self-defense claim.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Learn more about self-defense law from Attorney Andrew F. Branca and Law of Self Defense LLC by visiting the Law of Self Defense Patreon page for both free and paid-access content, and by viewing his free weekly Law of Self Defense Show.
[Featured image is a screen capture of an video interview of Defendant Chad Haufler.]
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Comments
A refresher is always welcome. TY.
“…There was a blood trail showing the Victim had been dragged himself some 20 feet….”
Just curious – which is the case: “the Victim had been dragged or did the victim “drag himself?
Either way, you are right – don’t lie, don’t blather on, and don’t walk away or stay silent to the point of magnifying suspicion of committing a crime (which already exists, inherently, given the situation). Frankly….these things just magnify that suspicion.
My apologies for my typos:
“Victim had been dragged” vs. “dragged himself”
(face-palm – oh, for an edit button!)
Yeah, sloppy editing is what got me, too. 🙂
I’ll clarify.
–Andrew
http://www.lawofselfdefense.com/patreon
What about a variation of the ‘say little’ approach that includes “I’ve nothing further to say until I speak with my lawyer?”
Frankly, that’s among the worst options. You’ve said something that’s not helpful–because it’s not an unambiguous assertion of either your right to silence or your right to counsel, and thus you have not definitely asserted those rights–and yet you’ve started talking, which often opens the door to more talking.
If your goal is to not talk until you’ve spoken to your attorney, simply unambiguously assert your rights: “I assert my right to silence. I assert my right to counsel.”
–Andrew
http://www.lawofselfdefense.com/patreon
Andrew,
I sounds like you are obliquely referring to Salinas v. Texas 12-126. I am not a big fan of the decision but SCOTUS is of course final. The case makes it just about mandatory to explicitly invoke your Fifth Amendment rights in States that do not afford additional self incrimination protections.
What,
“I’ve nothing further to say until I speak with my lawyer”
is not equivalent to
“I assert my right to silence. I assert my right to counsel”
?
What’s the difference? One has to actually use the word “assert”?
Asserting you right to silence or to speak with a lawyer will likely satisfy Salinas. That case concerned a man who stood mute.
Although very risky, Zimmerman successfully used the “Blather Approach” when, the day after, he took the police on a walking/talking tour of the incident on camera. Then both the 911 tapes and statement of the closest eyewitness backed up his account. Which is why the police didn’t charge him and correctly so.
Zimmerman didn’t deliberately “use” any approach, he wasn’t even aware such things existed.
He simply decided to fully cooperate with the police, without requesting counsel, because he knew himself to have acted in lawful self-defense and just assumed everybody else would see that, too. And he was, right, they did–which why he wasn’t arrested until the Crump/Jackson/Sharpton three-ring circus came to town.
The simple truth is that Zimmerman just got lucky. Not only had he ACTUALLY acted in lawful self-defense, he managed to somehow not inadvertently say anything to police that could be twisted into evidence of guilty.
Relying on luck in such matters is a high-risk proposition.
–Andrew
http://www.lawofselfdefense.com/patreon
I didn’t meant to imply that Zimmerman did what he did as part of a preconceived strategy. I agree he simply did what he did just because he didn’t feel any need to do anything else. And it worked out for him. And that’s probably somewhat rare because its so easy to get tripped up on details.
Stating out loud that you are extremely traumatized at the moment is both human and rational.
I found Lt Grossman’s books to be extremely informative about what physically happens via your nervous system when this goes down.
I’ve given my children “The talk” about traffic stops, i.e. Turn off the car, roll down the window all the way, get out your licence and proof of insurance *before* the officer walks up to your window, hold it in your hands on top of the steering wheel with the inside light on if it’s night, move slowly, and start the conversation off with “May I help you, officer?” (Also, “No, you may not search my car without a warrant” and “Yes, I’ll wait” and “May I go now?”)
The talk I gave them about police interactions where there’s even a sliver of a chance of being charged can be summarized as: The above, plus “I’d be more than happy to provide a statement through my lawyer, if you will give me your contact information” and “I’d like to speak to my lawyer, please.”
I really don’t anticipate being in a situation where I need to use violence to defend myself, BUT I’m afraid the only information I’d be providing the police in that situation is chanting, “I want a lawyer” to every question.
The retired DPS Trooper who taught my LTC class suggested: Officer I was in fear for my life and was forced to shoot. I require medical attention, I believe I am in shock.
Wait? Shoot, shovel, and shut-up isn’t an option. 😉
Oh come on everyone, only two up votes.
It’s funny…=)
I wonder if one can enunciate a single set of rules. What one does and says must vary with the facts, the jurisdiction and your assessment of responding officers.
For example a homeowner who shoots someone who breaks into his home in the middle of the night in Florida might would do well to explain “I was in fear for my life. He broke into my house and I have never seen him before. I thought I would be killed.” (assuming that is truthful). In this circumstance, invoking your Fifth Amendment rights would probably just lead local police to conclude you are hiding something.
Even in gun phobic New York City a wheelchair bound woman with a range permit who shot a mugger was given a pass by the police (She was of course on the way to the range).
https://www.nytimes.com/2006/09/09/nyregion/09wheelchair.html
In gun friendly Texas, a acquaintance fatally shot a man he had stopped to help on the side of the road after being attacked. He was subjected to relentless police questioning until the police learned that the decedent had a prior conviction for carjacking.
I’m a bit vague on how one can claim to recall almost nothing about a violent episode, but simultaneously claim enough knowledge to assert that it involved self defense. The claim seems to reduce to a generic “I would never do that” sort of statement . . . which may be perfectly true, but somehow seems inadequate.
Well, if the killing was NOT done in self defense, then it was criminal homicide. It is not a good idea to confess to having committed a criminal homicide, especially if you are not crystal clear on exactly what transpired.
As has been shown, through several studies done concerning police involved shootings, people tend to have vivid, accurate memories of events just prior to and after a deadly force interaction, but have a very muddled recollection of minor, and sometimes major, details concerning what happened during the interaction. There both psychological and physiological reasons for this. But, the mind will sort out these memories over time, mostly.
Every inflicted death of, or harm to, another human being is a criminal offense, unless done in self defense or under color of some other law. It will be investigated as a crime, with you as the main suspect. So, it is critical that you contend that the act was done in lawful self defense. The problem is that the LEOs are going to want you to support that by providing memories of the interaction, which should support that. Memories which are going to be jumbled immediately after such an incident. This is why you do not want to go into too much detail, or give an statement, immediately after such an incident, especially without some support [i.e. an attorney] being present.
Remember, you have just suffered a serious emotional/psychological trauma, if not physical trauma. You should be transported, immediately, to an emergency medical facility for observation and treatment. While there, do not become chatty with the medical staff. Attempt to contact an attorney immediately, or if you do not have one, then a family member. Remember, you are a victim and you should demand to be treated as one.
One final thing. LEAs really do not need your assistance in their investigation, except for providing identification of any witnesses to the incident. All large LEAs, and most smaller agencies, are quite capable of reconstructing the physical scene without you. You may be the only source for some pertinent facts, such as why you were in that alley or that you did not know the other person. And, your clear recollection of the sequence of events may flesh out a self defense case. But, those pieces of information are not critical to the early stages of the investigation.
I wasn’t even there that day.