As national leaders in firearms training as well as international firearms trainers, we are often asked by legally armed, prepared citizens about protecting themselves from the legal system in the event of a shooting. The reason for this post is to assist you with understanding your obligations and rights in legally carrying a defensive firearm.
We have the right under the 2nd Amendment of the US Constitution to keep and bear arms as citizens. That right is not granted by the Constitution, but is recognized as an inherent right of a free citizen. Laws have been passed by most states regulating that right. Whether or not we agree with those regulations, as legally armed citizens we abide by these restrictions. In all but five states, this requires residents to obtain a concealed carry permit for loaded handguns to be carried in any condition other than openly in a holster (I’ll not go into why we should not open carry should among the more timid of our citizens other than to say it is rude to unnecessarily frighten frightened people and it is tactically stupid to give up your advantage of surprise to a criminal who just might shoot you or disarm you because of your frivolous and immature display of your weapon).
In the event you are forced to shoot someone, there are steps you must take to protect you legally that may possibly prevent you from being prosecuted.
NOTE: This is not intended as legal advice—consult an attorney before acting on or depending upon any of the following.
Learn your state’s self-defense laws.
- Look them up. Read the laws on self-defense yourself. Each law has the elements it requires that you must satisfy for your shooting to be ruled justifiable.
- Go to a law library (generally located in your county’s courthouse) and ask for help in researching self-defense case law. Reading case law is the best way to understand what the courts require for you to explain and what limitations are placed on citizens in self-defense situations. Case law provide context. You don’t have to be a lawyer to understand what the courts say about self-defense and defense of others.
- Take a class–or several–from a reputable local or national instructor. Hint: Just because the instructor is a police officer, former officer, or former Spec Ops member of the military doesn’t mean he or she understands civilian self-defense law.
- Depending upon your state law, deadly force is generally permitted when you have a reasonable belief that your life or someone else’s life is in actual or imminent danger of death or serious bodily injury based on the totality of the facts known to you at the time. This means that another reasonable person would believe, based on all that you know and reasonably believe, that the person you shot was actually attempting or was about to attempt to murder you or injure you so badly that you could not continue to defend yourself or even flee. In some states, you are required to retreat and have your back to the wall (no other reasonable option) before firing. Again: Know your state’s law!
- Never shoot anyone who is running away. Only cops are permitted to do that under very limited and specific circumstances.
- Don’t shoot someone who is stealing from you (as opposed to robbing you). Stealing is the act of a thief. You can buy new stuff but cannot justify shooting a thief over the loss of your stuff.
- A “robber” is someone who deprives you of property through force (physical violence or use of a weapon) or fear (brandishing a weapon during a robbery in a manner causing you fear for your safety), threatening your life or safety. An armed robber’s actions, causing you to believe he is armed or pointing a deadly weapon will generally qualify as putting you in reasonable fear of death or serious bodily injury—the basis for self-defense.
- Never draw your firearm or point it at someone you do not have a reasonable belief that you are likely to be forced to shoot. Brandishing (handling a weapon in a reckless manner and creating fear in a reasonable person) or “scaring” someone with a firearm if not justified by the circumstances is a crime. In some jurisdictions, reaching back and touching your weapon like you might draw is considered brandishing. If a reasonable person would believe, under all of the circumstances at that moment, that you are in a potential self-defense situation, and you believe you are about to be assaulted in a manner that would lead to deadly force, it might justify drawing your weapon and even pointing at a person in an attempt to prevent the need to shoot.
- ALWAYS immediately report the incident to the police and explain his threatening actions and behavior in extreme detail forcing you to draw your weapon to prevent being attacked. You want to be first reporting it and not attempting to explain what happened a couple of days later to an officer who has a warrant for your arrest for brandishing. If his actions were frightening enough for you to draw your weapon, he needs to be reported to the police. Not reporting a serious incident or leaving the scene without reporting is seen as the act of a criminal. Be the first to call 9-1-1.
Obtain Legal Insurance. We suggest you become a member of the “Armed Citizens Legal Defense Fund.” The Defense Fund provides members with a $10K legal retainer for an attorney when you are involved in a self-defense shooting. This fine organization also provides training videos on deadly force and the aftermath. We know Attorney and firearms instructor Marty Hayes who runs the defense fund well. He is a good man and provides a very valuable service for a modest price.
- Their website: http://www.armedcitizensnetwork.org/.
- Phone: 360.978.5200.
Develop your skills. Our best advice:
- Practice shooting often. Ammo is expensive. Funerals are more expensive. Nursing homes and rehabilitation facilities are beyond expensive. Hitting the wrong person when you are attempting to save your life is insanely expensive, and worse, you’ll have to live with yourself knowing that you hurt or killed an innocent person. Go to the range. Practicing your shooting skills does not require burning through a mountain of ammo. It requires conscious practice of the fundamentals of hitting: Grip your weapon with a locked wrist; ignore the wobble as you concentrate on the front sight; and get that surprise trigger press as you press and end with perpendicular pressure on the trigger. Then find your front sight before looking at the target (follow through). Practice your malfunction drills and reloads until they are habits.
- Practice, practice, practice from a good concealment holster. Buy a red or blue gun (a non-fring plastic replica) and practice with it from your concealed position—yes, tuck your shirt in each time before you draw, just like you carry. Training is where you develop the problem-solving skills when you make mistakes. If you leave figuring out how to regrip your handgun when you have a handful of shirt or your front sight getting caught in your waistband or shirt during the one and only time you are drawing that weapon to save your life, it might not go well for you. And never practice your draws with your loaded pistol except at a live-fire range.
- Get professional training from a reputable instructor. No matter how much training you’ve had, more is always better in growing your skills and keeping them crisp. Be sure to document that training if you are not presented with a certificate.
Act responsibly while armed:
- Be mature: keep your weapon concealed to retain your tactical advantage. Carrying a loaded weapon is not cool; it is a grave responsibility.
- Don’t drink alcohol at all if you are carrying concealed. Period.
- Stay out of conflicts with folks in public while carrying. If an argument develops, leave even if you are in the right—and forget about having the last word. If things get ugly and you are forced to shoot in self-defense, you want to be 100% squeaky clean in the lead up to this incident. Don’t give anyone an opening to question whether or not you are the good guy in this incident. If you let yourself become part of the problem you then need to shoot your way out of, the civil jury will later decide what percentage you contributed to the problem and hammer you. A firearm on your hip means you have no opinion about anything in public.
- Intervene in a problem only if you believe there is a threat to life—call the cops instead. If you’re armed, intervening in a fist fight or domestic dispute may result in a shooting or being disarmed and getting shot. If you are seen as contributing to the shooting through your actions pre-event, it will make it more difficult to prove you were the victim of a deadly assault.
IMMEDIATE POST-SHOOTING ACTIONS
If someone forces you to shoot them, immediately call or have someone call and report it. Everything you say is recorded. It is vital that you begin to establish your status as the victim of a crime, who responded in self-defense or defense of others, in the first call for assistance.
Tell the 9-1-1 call-taker:
- My name is (First and Last Name).
- A (man/woman) armed with a (type of weapon) just forced me to shoot him.
- I need officers and an ambulance to respond to (the location—if you don’t have an address, describe the buildings or area).
- I am the victim and I look like (give them your description: Gender/race/height/weight/hair color/eye color/clothing).
- I am still armed. What do you want me to do?
If there are outstanding suspects, give their descriptions as well as their direction and mode of travel (E.g., “There were two males who also had knives. One was a white male, 15 to 20 years old, tall and thin, with blond hair wearing a black hoodie sweatshirt and orange running shoes. The second as a black male, 18-25 years old, tall with a medium build, black short hair wearing a gray hoodie as well. Both were on foot, running northbound on Second Street.”
If someone is injured, ask for emergency medical assistance (ambulance) to be sent.
- If it is safe to do so, holster your weapon.
- If it is safe to do so, immediately engage in life-saving efforts of staunching blood flow with direct pressure, tying off excessive bleeders with expedient tourniquets (cinch a belt above the wound in a limb and tighten it until it stops bleeing), and, if necessary, perform CPR. Also recognize that this person who just attempted to murder you or someone else may transmit some blood-borne pathogen that will sicken or even eventually kill you. Use emergency precautions such as gloving up before contacting blood or body fluids. Make a decision now about whether or not you are willing to risk performing rescue breathing on someone given the dangers of disease transmission.
SURIVING THE INITIAL POLICE RESPONSE
Think about what the police officers who are dispatched to this call are responding to. What they know for certain:
- There is a firearm involved.
- At least one person was willing to shoot another person.
- Regardless of what the dispatcher tells them over the radio or computer, that person may be willing to shoot police officers.
The cops responding to this call are amped up and scared. These are types of calls where officers are routinely murdered. If you do anything that can be remotely interpreted as a threat to their lives, they may justifiably respond with deadly force and you may be severely wounded or even killed. Be very careful in the next few minutes until the officers are satisfied they are safe.
The initial contact with the police is generally the most dangerous—it is up to you to safely navigate this first contact. They have a process that permits them to more safely gain control over a scene, lock it down, and then figure out who is a criminal and who is a victim. By shooting in self-defense, you have just entered into that process and it is in your best interest to cooperate fully with the police as they attempt to safely handle this call. Pay attention to everything you do—feeling bad about shooting another human being, going into shock after having almost been killed, or being apprehensive of the subsequent legal process has to wait—you need to physically survive the first contact with the police without yourself being shot by an officer who misinterprets your action.
- Unless there is a continuing threat and a real possibility of needing to shoot again, holster your weapon before the police arrive.
- If it is not safe to holster your weapon, be prepared to drop it to the ground the moment the first officer arrives. If you don’t want to scrape and ding your weapon by dropping it on the concrete, don’t carry it.
- Never disturb the crime scene. Do not collect personal property from the ground or elsewhere. Everything in the immediate area is evidence and it will be used to either prove or disprove your version of the events.
- It is likely you won’t know the officers are on-scene until someone in uniform is pointing his or her own firearm at you and yells, “Police. Drop your gun!”
- NEVER turn toward an officer with a firearm in your hand! If you do, you are likely to be legally shot for creating the perception of imminent danger to the officer.
- You can tell when the cops are scared because each of them will be yelling orders. Often, those orders are contradictory, e.g., “Don’t move!” “Get down!” “Turn around!” If you are getting contradictory orders, freeze while keeping your hands absolutely still and yell slowly, “What do you want me to do?” One of the officers will begin to understand the problem and get the others to be quiet, then take charge of you. Do what the officer tells you and comply by moving deliberately.
- In the police officer’s world, hands kill cops and pockets and waistbands hold weapons. Put your hands only where they tell you and only there.
- Do everything the officer tells you. If you are ordered to the ground, get on the ground even if it is wet and muddy or covered in snow.
- You will likely be handcuffed. Relax, don’t resist, or attempt to talk them out of it. There will be plenty of time to explain and to talk with the police after the officers take control of the scene and feel safe enough to begin their investigation.
- You will be thoroughly searched. Don’t take offense. Yes, at this point you are being treated like a suspect because the officer doesn’t know the facts. Let the officer do his or her job so that the investigation can begin. It will help the officer (and help show you have nothing to hide) if you point out, “Officer, I have folding knife in my (left/right) (front/back) pocket, as well as a spare magazine of ammunition in my (left/right) (front/back) pocket.”
THE INVESTIGATION BEGINS
Once things settle down and the investigation begins, a police officer will begin speaking to you about the shooting. You are being lawfully detained and are not free to leave. You may or may not remain handcuffed at this point. You are required to give them your name, address, date of birth, phone numbers, etc., when asked.
At some point, they will begin to ask you questions. Tell the officer no more than the following information about the incident and your decision-making:
- “I thought I (or the person I was defending) was going to die when that guy came at me with the gun/knife/club/etc.” (Translation: I am the victim of a deadly assault).
- “I had no choice.” (Translation: I am not the aggressor and I didn’t want this to happen).
- “I want him arrested” (even if you know the suspect is dead). (Translation: I am the victim of a criminal assault and am pressing charges).
- “I will cooperate with you and investigators, but I need time to recover and talk with an attorney before you question me.” (Translation: I’m not a dirtbag criminal who is lawyering up to escape the consequences of my voluntary actions, but rather a victim of a crime who is rattled having almost been murdered and wants to legally protect myself before giving my statement to detectives).
- “Thank you for being here.” (Translation: I’m not a criminal because criminals are never glad the cops are there. I’m glad that you are here because your presence means I am physically safe. I want to assist you in your job.).
By the way, the officer will not dislike you or treat you any differently if you invoke your rights or tell him/her that you need to speak to an attorney. Too many people unaccustomed to dealing with the police (other than traffic stops) are worried that if they don’t cooperate and immediately answer all of the officer’s questions, it will make it more likely the officer will be displeased with them and go harder on them. The patrol officer can’t go harder on you because he or she is only determined to get the facts of the case. The more that officer or any officer digs into this case, the better it will be for you. Remember, this is the officer’s job, and people invoke and don’t cooperate with the police all of the time.
The one rule in dealing with the cops is: Never lie to the officer. If you think a fact may not look good or be favorable to you, it is better to refuse to answer than to lie or even shade the truth to the cop. Any lie is going to be found out based on the evidence, other witness statements, surveillance video, etc. Lies are difficult to keep track of and everything you say will be compared to everything that you will ever say about the incident. Once discovered, that lie will taint your entire defense and may turn an otherwise justifiable shooting into a prison sentence. Don’t do it. Tell the cop the truth or don’t say anything at all.
If you are Mirandized, invoke. You’ll know you are being Mirandized when an officer reads from a card that begins, “You have the right to remain silent…” When they ask if you understand all of your rights, you answer in the affirmative. When they ask if you would like to speak to them at this time, your answer (again) is:
- “I will cooperate with the investigation after I’ve spoken to my attorney. I thought I was going to die” (Or, “He was going to kill me/another person.”). I have to speak to my lawyer before answering any more of your questions.”
Then say nothing about the case. Until your shooting is ruled to be justified by the DA/Prosecutor, the police and legal system are not your friends. Every word you say must support the facts of your case and carelessly speaking to an officer who is not recording your exact statement may be misinterpreted and used against you. You have nothing further to say to the police until you talk to an attorney, rehearse the facts you know with your attorney, and then give your statement to detectives a couple of days from then.
- Do not prattle on about the shooting because you are full of adrenaline.
- If they arrest you, be quiet. Don’t talk about it in jail. Inmates are definitely not your friends.
- If they let you go home, be quiet…you may speak only with your spouse, attorney, licensed clergy, licensed psychiatrist or psychologist (not a counselor), or licensed medical doctor (M.D.).
- Everyone else you tell your story to until the D.A/Prosecutor clears you of criminal charges becomes a potential witness against you. Be smart: be quiet.
JUSTIFYING YOUR DECISION-MAKING
Citizens too often believe they just need to say they were scared and that he had a gun, and then all of the rest will fall into place. While this can still happen in some places in the US, it is increasingly unlikely. It is naive to think in this day and age that just because you believe you were justified will mean that your community, the media, and the justice system will automatically agree. It is probably best to hope for a smooth process where the shooting is ruled to be “justified” while expecting that you will likely have to prove to a jury that you were justified. Taking this approach means you can realistically prepare for what is needed and what you will probably experience. Being surprised at being “treated like a criminal,” that an adverse and on-going media reaction occurs, and that you are forced to stand trial means you are likely to make mistakes along the way that just might ensure an adverse result.
The aftermath of a shooting having a positive ending is all about your ability to humbly and comprehensively describe why you had no other choice other than to shoot someone who was about to kill you/someone else or harm you so badly you could no longer defend yourself or others. You will need to put the listener (police detective, District Attorney/Prosecutor, and, if need be, each juror) into your shoes and looking through your eyes at the event. Talk about facts and explain why those facts made you fearful and concerned for your safety. Explain from the perspective of the suspect being the actor and you being forced to react to his/her threatening actions.
It will be vital you include your training and experience. This means all of your training as well as those incidents you are familiar with that lead to your reasonable belief you needed to defend yourself or others with deadly force. This permits others to understand more of your state of mind. And it is from your reasonable state of mind that you will be judged according to the reasonable person standard (“Would another person in the same or similar circumstance, given that person’s training and experience, respond the same way or make similar decisions?”)
The laws in most states permit citizens, like the police, to make reasonable mistakes. If you do mistake a cell phone for a gun, you are going to want to convince the detectives and the DA that anyone in your shoes would have made the same mistake. Essentially, the DA/Prosecutor is looking for any reason why this was not a “reasonable shooting.” A reasonable shooting ruling results when you are able, based on the facts of the case and your articulation of your perceptions and beliefs, to convince the DA/Prosecutor that any other reasonable person would have done the same thing you did. This is why you must have the best lawyer and go over your statement using only the facts you know (and never permit your lawyer to talk you into shading the truth—they are used to dealing with lying criminals who are volunteers in the legal system, not stand-up citizens forced to defend themselves as victims).
ABOUT THE MEDIA
The shooting will be a big deal for a while in your county. Hopefully it won’t blow up to become national or international news (e.g., Zimmerman shooting Martin in Florida in 2012). The media is not your friend and they can become your enemy. Hopefully you can duck the media bullet. If not, avoid a “No Comment“ comment—it makes you look like you have something to hide. If you are contacted by the media before you give your statement to the District Attorney/Prosecutor, explain that you cannot give a statement until that is completed.
After your official statement, if you cannot avoid them without making the media hostile, avoid speaking about specifics—you are a criminal defendant pending trial.
- Remain focused on the fact that you were the victim of a criminal attack, that you felt your life and safety were in danger, and that you had no other choice than to resort to deadly force to protect your life/the life of another.
- Tell them that all of the facts of the case will come out in your criminal trial and you will give a full interview following either the DA’s/Prosecutor’s/Grand Jury’s decision (to indict you or not) or the jury’s verdict.
- Never give a statement without your attorney present and follow his or her instructions.
Carrying a weapon fundamentally means that we are taking responsibility for our personal defense and the defense of others if we choose. It also means that we are taking responsibility for each and every consequence of introducing a loaded weapon into any situation. Shooting and possibly killing another person is not something anyone takes lightly. Preparation for carrying that weapon should not be taken for granted and neither should the eventual outcome of either the shooting or the legal process taking years that can extend from a grand jury hearing to a criminal trial to a civil trial.
Being a prepared and legally armed citizen is more than simply legally carrying a loaded handgun. It requires each of us to understand when we can lawfully shoot, to act calmly, responsibly, and reasonably within society, to make legally sound and defensible deadly force decisions, to hit what we are aiming at, to then act in a manner making it safe for the responding police to contact us, and to be able to comprehensively and truthfully articulate the basis of our decision to shoot another person. If we are the victim of a crime that results in terribly injuring or killing our attacker(s), we must prevent being secondarily victimized by the legal system because we fail take the steps to protect ourselves. Understanding what the process needs from us to justify our actions and to be found to have been reasonable in our decision-making and actions is our responsibility as well.