Citizen's Guide to Armed Defense (2015)

CHAPTER EIGHT: THE INVESTIGATION

CASE STUDY

A police officer is forced to shoot an armed robber after the suspect leaves a bar he has just robbed, walking out a side door directly into the officer with gun in hand and money in a pillowcase. The robber is shot and killed. The officer has his pistol taken by a supervisor, is taken to his station and locked in a suspect holding room until investigators interview him.

CASE STUDY

A police officer has just shot and killed a man who answered the door with gun in hand at an apartment on a loud music call. The rifle looks like an AK-47 but turns out to be a BB gun. The officer is disarmed at the scene, taken back to the station, placed in isolation in a suspect holding room, and interviewed immediately after the shooting.

CASE STUDY

A veteran police officer with over 25 years of service is criminally indicted for felonious assault after a shooting involving a crack-head who attempted to rob the department store the officer was working off-duty security. After the suspect commits a strong-arm robbery of the 16-year-old female cashier, the officer grabs him from behind. The suspect still high after an all-day cocaine binge tosses the large officer around “like Hulk Hogan.” At one point, the exhausted officer, feeling he is losing the battle, draws and fires two rounds. One of his bullets misses. The second round goes in and out the suspect’s cheek, creating just a flesh wound. In the words of the officer, “the suspect fights harder,” picking the stout officer up and throwing him through a glass exit door. A video shows the suspect attempting to run away, and the officer attempting a tackle, which misses. The suspect is moving away through the parking lot, the video shows the officer raise his handgun and the suspect sustains a wound to his thigh that shatters his femur. The suspect hobbles to the rear of a parked car where he is taken into custody.

The officer is interviewed by his agency. The detective commander who interviews him compels the statement in what in law enforcement parlance is a “Garrity Statement.” During this “use of force investigation” instead of obtaining the “totality of the circumstances” and the officer’s perceptions as to what happened, the police commander focuses in on the department issued handgun the officer used versus the legalities of his use of force. In their agency, the officer is not permitted to work an off-duty job and carry the agency handgun. *Note – A Garrity Statement is a compelled statement that means that what the officer said is for internal investigation only and cannot be used against the public employee at a criminal trial. Unfortunately this Garrity Statement is taken into the Grand Jury along with the videotape. The officer is indicted.

I am retained as an expert by the officer’s defense team. During the course of the interview on everything the officer saw, heard, smelled, felt and perceived (an interview, the likes of which he had never been give prior) I learned that the suspect had attempted to disarm the officer during the fight in the store checkout area. The officer told me that the video used by the prosecutor to indict him was not even the shooting. The actual shooting occurred when the suspect threw him through a glass exit door and then rammed his hand into his pants pocket as if to draw a gun. The officer fearing the suspect, who had already attempted to disarm the officer, was drawing a handgun. The officer had opened fired at his point and then attempted to tackle the suspect who was still trying to get away. The video the prosecutor had only showed the officer raising his handgun from low ready to point-shoulder and then lowering it.

Armed with this new knowledge, I went home and imported the video in question into my laptop and a program called Microsoft Movie Maker®. I broke the video down into frames per second and could only find the officer had four tenths of one second from which he raises his pistol from a 45-degree angle downward, toward the suspect, and then lowers it. Could the officer fire three shots in this time frame? I went to the range with a PACT timer, got on my knees like the officer involved in the shooting, and attempted to raise the pistol and fire as fast as I could.

Here are my results:

First String

.72

First Shot

.83

Second Shot

.97

Third Shot

1.08

4th

1.22

5th

1.33

6th

Second String of Fire

.60

First Shot

.72

2nd

.83

3rd

.94

4th

1.06

5th

1.17

6th

Put simply, there was no way our officer could raise his pistol and fire three shots in .40 of one second. I put this information into an opinion and submitted it to the defense team. At that point, a new video emerged which actually showing the femur shot and supporting the officer’s statement.

In the interim the officer had to go through hell, the possibility of losing his job, going to trial and maybe even going to prison for doing his job.

THE ARMED CITIZEN COROLLARY

Now, this is a book for the armed citizen, why would I start this chapter on post shooting investigations talking about shootings involving police officers?

Because these same detectives and police supervisors may be investigating your shooting.

Here are some facts about law enforcement use of force:

· Most police agencies within the U.S. are 40 officers or less.

· Most police agencies don’t experience officer-involved shootings or even serious use of non-deadly force with any regularity and may have never investigated a police shooting.

· Most administrators have little knowledge about the legalities of use of force.

· Most chiefs of police are politicians who serve at the whim of their political masters.

· Most investigators have little training on how to investigate police shootings, how to investigate and document “the totality of the circumstances.”

· Although most agencies have policies on use of force, many fail to follow their own policies.

· Most agencies are unaware of the effects of the sympathetic nervous system on a person and their performance, post-critical incident amnesia, inattentional blindness, sleep cycles and memory, Miranda and Garrity, cognitive interviewing, scientific research on performance and movement, response time versus reaction time, and more.

Couple all of the foregoing facts with a police officer who has had marginal training on the legal aspects of use of force and you have the recipe for a poor outcome. Officers are empowered by their city, county or federal government to use deadly and non-deadly force in the performance of their duties, but may not have a solid legal understanding of when they can and cannot use force and are subject to a poor use of force investigations when they do so.

The result is that police agencies frequently throw their own officers under the bus in a shooting or serious use of non-deadly force or improperly discipline them, even criminally charge them based on lack of knowledge about use of force law. The driving force for this, in years past, was “vicarious liability” – agencies, supervisors and even officers were afraid they would be sued in civil court. The truth is that I don’t know of one officer who has ever paid out of his pocket in a civil suit on a use of force. That’s not to say that busy agencies don’t experience lawsuits but in truth, most civil litigation is not from the big cases say, a police shooting, but rather on minor injuries in the little uses of force.

The big liability today is political liability. Agencies are more afraid and are more likely to toss an officer under a bus out of the reaction to the politics of force than for the monetary fears of a civil suit. Think about Reverend Al Sharpton or Rev. Jesse Jackson or a slew of “community activists” coming to a city after a cross-racial shooting. This will only be magnified if the suspect was unarmed or had an airsoft pistol versus a real firearm. These activists will organize marches and exert tremendous political pressure on the agency. Seldom will a chief stand-up to such pressure, because they are more worried about their job and their career than taking care of their officer. There are exceptions but few and far between. The officer is more dependent on their police union or association and their attorneys to protect them than they can count on the leadership of their own agency.

Indicative of this difference between the ranks and the feelings of most chiefs of police to citizen armed self-defense, is the comparison of line officers support of the 2nd Amendment and concealed carry by citizens versus police chiefs in most major cities. In April of 2013 PoliceOne® released a survey of over 15,000 officers on gun control and concealed carry. From that survey:

Question: Do you think a federal ban on manufacture and sale of ammunition magazines that hold more than 10 rounds would reduce violent crime?

Survey Results: 95.7% “No”

Question: What effect do you think a federal ban on manufacture and sale of some semi-automatic firearms, termed by some as “assault weapons,” would have on reducing crime?

Survey Results: 71% “None”

Question: Considering the particulars of recent tragedies like Newtown and Aurora, what impact do you think a legally armed citizen would have made?

Survey Results: 80% “Casualties would likely have been reduced”

Question: Do you support arming teachers and/or school administrators who volunteer to carry in their school?

Survey Results: 76.6% “Yes, if they are vetted, trained and qualified annually”

You can go to PoliceOne.com to view the complete survey results.

Compare this with police chiefs in Chicago, Baltimore, New York City, Washington D.C. and other large American cities. Legislative Chair Tom Manger stated on C-SPAN® in December 2013, that The Major City Chiefs Association has come out in support of the assault weapons ban, and the ban on “high capacity” magazines. In addition they’ve supported the asinine S.A.F.E. Act in New York state as well as supporting other gun control issues making statements such as “Assault weapons are enablers of violent crime and mass murder.”

Of course, we are comparing 15,000 working police officers with 64 chiefs who are appointed to office by politicians, most of whom are vehemently anti-gun. We only have to examine the effects of gun control and crime by taking a look at Chicago and Washington D.C. The exception is Detroit Police Department Chief James Craig who has stated “If more citizens were armed, criminals would think twice about attacking them. When we look at the good community members who have concealed weapons permits, the likelihood they’ll shoot is based on a lack of confidence in this Police Department,” Craig said at a press conference at police headquarters, adding that he thinks more Detroit citizens feel safer, thanks in part to a seven percent drop in violent crime in 2013.” (January 2014)

It is my belief that, in most mid- to large-sized agencies, in a controversial shooting or serious use of non-deadly force, the administration is more likely to charge the officer with policy and procedure violations or charge them with a crime and make them prove their innocence, than support and defend their actions.

CASE STUDY

Bill is a patrol officer for a small middle class rural community. On a sleepy Sunday morning a suspect goes on a shooting spree, shooting his girlfriend and then killing seven others including an 11-year-old boy he hunted down in a basement and killed. Bill responded, got a good description of the suspect from a witness and deployed with his AR15 patrol rifle. When Bill encountered the suspect with his pistol still in hand, he ordered him to stop. The suspect then turned and began to raise his handgun. The officer fired three times, hitting the suspect with his 5.56 rounds twice. The suspect ran a few steps then collapsed and died on scene.

In the aftermath the officer, working with his union representative refused to give a voluntary statement to the county prosecutor. The union rep asked that the officer receive limited immunity for any statements he gave. The county prosecutor refused and threatened to subpoena the officer into the Grand Jury. The experienced union rep stated that the hero officer would invoke his 5th Amendment rights in the Grand Jury and then they would have a press conference outside the courthouse.

Eventually the officer was cleared of any wrongdoing by the prosecutor without the officer making a statement. The officer would later receive a presidential award at the White House for his actions.

CASE STUDY

The primary assistant prosecutor for this office had done the following after officer-involved shootings: doodled on a notepad and asked arcane questions during interviews; told the room full of police detectives and police union reps and lawyers that they “needed to hurry up, I have a picnic I have to get to”; told police investigators that the only time she gave Miranda was when she thought there was a problem with a shooting, and then gave Miranda to the next officer involved.

The actual prosecutor has waited over six months to clear an officer of any wrongdoing because of the political fall-out, cleared an officer even though she incorrectly interpreted the law by stating in one shooting, “although an officer cannot shoot a fleeing subject in the back,” and criminally charged five sheriff’s deputies in an in-custody death.

The author’s first book was based on inept investigations into police use of force. There are many crossover issues that apply to citizen investigations as well.

The above sad state of affairs and the fact that I’ve worked on numerous cases where officers were charged with crimes by incompetent investigators and supervisors based on ignorance of use of force law, botched investigations, or even worse political motivations was the reason why I wrote my book Use of Force Investigations: A Manual for Law Enforcement (2012, Responder Media). These are the same politicians and police investigators who may investigate your shooting.

Think it won’t happen to you as an armed citizen and you’ll be hailed as a hero? I’ll bring you back to reality by invoking one person’s name – George Zimmerman.

I’ve written about the “politics of force” several times and have lectured on the topic at the ILEETA conference. Make no mistake about it, carrying of a concealed weapon or armed home defense and the use of or threatened use of deadly force carry political implications you may have not considered. Let’s examine how the investigation will unfold and what you can do to protect yourself.

ON SCENE

We have already talked about the danger of “spontaneous utterances” such as, “I didn’t mean it,” or “it was an accident” and similar. There is a tendency to experience “diarrhea of the mouth” on-scene post incident, having just gone through a fight for your very life and looking for vindication through the responding officers. Make no mistake, you should assume that everything you say is going to be recorded by the officer/agency via “body-worn video and audio cameras” on the officers or at least in a written report. These statements made on the scene will be compared with any statements made later on or at trial. If the statements don’t match or there are differences, the prosecution may infer that you are lying.

What should you say? Limited statements about being the victim, witnesses to the incident, the location and description of any evidence that may be missed or lost, suspect(s) description and direction of travel, then make the statement that you are willing to speak more to them but would like your attorney present.

As I mentioned earlier, expect to be treated as a suspect in a homicide versus the victim of an attempted murder, homicide being defined as “death at the hands of another.” This is how police officers are treated, by and large, and you should not expect to be treated any differently.

Your use of force must be within the parameters of what a reasonable person would do in like or similar circumstances.

As we have already stated, expect to be handcuffed. Expect to be searched and have your firearm, spare magazine and any other self-defense related items taken, as well as your cell-phone. If you are handcuffed you will be searched. If your vehicle is involved in the incident it will be searched as well. If the shooting takes place in your house, the house is a crime scene. You may be asked for a consent search of your car or home but regardless police officers will be looking as they investigate and possibly process the “crime scene.” Prior to any “consent” searches, I would recommend you consult with an attorney. Of course, the police may just get a search warrant, but consenting to a search is a different matter entirely.

CASE STUDY

A well-known firearms writer and gun magazine editor used a military style large-bore rifle to shoot and kill a suspect who had threatened him at his home. Both victim and suspect had been drinking. The armed citizen was taken to trial for second-degree murder twice, both trials ending with jury deadlock. The charges were eventually dismissed.

This case which lasted several years cost the armed citizen his editor’s job, work with a longstanding publisher and a tremendous amount of money. It is simply not enough to be right you have to be able to prove you were right. Proving you’re right is composed of several different parts:

· Compliance with self-defense law

· Totality of the circumstances

· The physical evidence

· Video evidence

· Independent witness statements

· Your companion’s statements

· Your statement

Compliance with the law is the most important part. Excessive force, whether deadly or non-deadly, is outside the limits of the law. The legal investigation post-incident will examine the need for force and the relationship between the need and the amount of force used. Your use of force must be within the parameters of what a reasonable man would do in like or similar circumstances. Deadly force is reserved for incidents in which you believed that your life or the life of another has been threatened with death or serious bodily harm. It is up to you to articulate or make the case that what you did was within the law, not excessive, and what a reasonable man would do in similar circumstances.

This is accomplished by making a statement working in conjunction with your legal counsel that adequately establishes “totality of the circumstances.” This is not an easy thing to accomplish while at the same time protecting your rights. On scene comments, as we have discussed, should be limited to identifying physical evidence that may otherwise not be collected or lost, and identifying witnesses that LE can interview.

CASE STUDY

While working uniform patrol, my partner and I responded to the scene of a local neighborhood carry-out where a police captain had been involved in a shooting. This incident was not widely broadcast; the suspects had driven away after pointing a pistol at the supervisor and him returning fire. The captain of that shift had called my captain and we were dispatched to write a written report. The scene was not secured or evidence techs called out. The carry-out was never closed and customers continued to walk through the lot and in/out of the front door. I had walked into the business to ask the owner for the phone number and some other info for the report when I saw a female customer walk out and heard her kick what sounded like a shell casing along the ground. I followed the sound with my flashlight and found a 9mm casing. Fearing it would be lost, I picked it up and returned to my patrol car to fill out the evidence report. A short time later a detective sergeant arrived and after conversing with the captains, walked over and asked me, “Are you the officer who found the casing?” I said I was and that I picked it up because I was afraid it would be lost. He said, “Why wasn’t the scene secured?” I looked over at the two captains and said, “Sarge, I’m not in charge of the scene.” He looked over his shoulder at them, nodded, said, “You’re right,” and walked away.

Now this was over twenty years ago, but even for the time the investigation was not done correctly. Is it possible that police investigators who respond to your shooting scene, in your city or town might do something similar? Absolutely. Once again, most jurisdictions have not had or do not have that many officer involved shootings and certainly don’t have that many cases of legitimate self-defense shootings.

You will be transported to the station. You and other witnesses cannot refuse to cooperate or you may be subject to arrest for obstructing justice. In my state Obstructing Justice is: “No person, with purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment of another for crime or to assist another to benefit from the commission of a crime…Destroy or conceal physical evidence of the crime or act, or induce any person to withhold testimony or information…”

If you have threatened a person with a firearm, have fired at them in a self-defense situation, shot and wounded an assailant or shot and killed them, you are not free to go and must cooperate with police in terms of their investigation.

Investigators will undoubtedly transport you to the station for more. You do not have the right to refuse. Investigators may ask for clothing if they believe it is evidence, i.e. bloodstain, ripped or torn indicating a struggle. If you don’t supply these items, they may take them with a search warrant. They may photograph you for evidentiary reasons, e.g. bruises, bloody face, scratch marks, scuffed knuckles, etc. Remember George Zimmerman and the allegation that his injuries were minor until police evidentiary photos and video of the police sally port were examined and his bloody face and head indicated the true extent of the severity of the attack and Zimmerman’s injuries. These evidentiary issues – photos, clothing being seized as evidence, gun shot residue (GSR) tests – all will aid establishment of the totality of the circumstances and you should cooperate. If you don’t, the investigators will simply get a court order anyway.

CASE STUDY

A veteran homicide detective confirmed all of the foregoing points except he stated that uncooperative witnesses will probably not be arrested (witnesses, not participants). This is not to say that there are some jurisdictions where this might still hold true. He did confirm that a citizen claiming self-defense who refuses to comply with photos, GSR and clothing seizures casts doubt on their own innocence.

Photos should be made before you are cleaned up by E.M.S. at the scene or in the Emergency Room. A bloody face, torn or disheveled clothing, all make more of a case than a small scalp laceration with a Band-Aid on it.

If you are injured, if you have a history of physical disease, i.e. heart disease or previous heart attack, or if you don’t feel well (parasympathetic backlash after a violent, dynamic encounter), then ask to go to the emergency room. It is often recommended that police officers go to E.R. to be checked out by doctors after a shooting. Over the years, numerous officers have had heart attacks during traumatic incidents and died because they did not seek medical care. It is recommended that if you believe any of the foregoing is true that you seek medical treatment. It is also true that documentation of any injuries will be made right after the event versus days later.

As injuries progress, e.g. bruises get more colorful, etc. have your attorney or someone else with a time stamp camera or smart phone document these as well. Sometimes a bruise looks just like a red mark versus days later when it is black and blue and covers a wide area.

During this entire time at the station, and with every contact with police, you should assume that everything you say is being recorded – either in written form, audio only or video/audio together. There are no “off the record” statements made to police officers.

THE INTERVIEW

As eminent police psychologist and fellow ILEETA member Dr. Alexis Artwohl, Phd. has stated, “the goal of use of force investigations is: 1) Maximize the thoroughness and accuracy of the investigation while; 2) Minimizing the trauma to the officer and their families. Dr. Artwohl expounds that the investigator is not getting a statement about what really happened but is rather getting a statement of witness “perceptions.” Determining the reality of the case or the facts of the case is based on physical evidence and these witness statements. Witnesses interviewed can be participants – the officer(s) and suspect(s) as well as observers. Their perception-based statements are based on what they: saw, heard, felt, smelled, their beliefs, attitudes, biases and expectations. Of course the more you are able to learn about the person the better your ability to ascertain their influence on the person’s statements. “The person may be telling the truth and they may be lying. We define a lie as they are deliberately and consciously telling you something that is different than what is in their head.” Dr. Artwohl states that oftentimes police officers are disciplined based on an investigators “interpretation of their intent.”) Dr. Alexis Artwohl, ASLET Seminar, Buffalo, NY, 1997)

The investigators will want to get a statement from you, without your counsel present, as soon as possible after the incident. There may be tremendous pressure by investigators for you to make a statement after the incident. You should never give a statement without the presence of your attorney. Police officers empowered by the law to use force, would not make a statement post-incident without their attorney present. You must be steadfast and state, “As a victim, I wish to cooperate with this investigation but I will need to meet with my attorney and have him present before any questioning.”

What you actually want is to delay questioning for one to two days. For years an immediate statement was required of police officers after a shooting. Over the last ten years or so, we have learned more and more about memory and the effects of stress, SNS response on memory and the need to wait until after a couple of sleep cycles to improve memory.

The investigators have two choices:

1) They release you based on lack of probable cause and make an appointment to bring you in with your attorney for an interview, or

2) They arrest you.

CASE STUDY

A young man and his girlfriend are at a local university area bar enjoying themselves when three drunken males began harassing them. The three drunks were thrown out by the bouncers for their behavior. Later the man and his girlfriend left the bar and while walking down the street saw the three drunks from the prior incident hiding behind bushes next to the sidewalk. One of the three suspects jumps out and attempts to assault the male half of the couple. The innocent citizen throws one punch, knocks out the suspect on his feet. The suspect falls backward, hits his head on the sidewalk and dies from the impact. The “victim” who did nothing wrong, was arrested by investigators too lazy to find out the facts.

Charges would later be dropped but the victim was arrested and incarcerated until he could make bail and had his very freedom threatened.

This case is a sad example of:

1) In a self-defense situation anything can happen and death can result regardless of the mode or method of force including, non-deadly force such as the Taser or pepper spray, and

2) Regardless of your innocence it is entirely possible you may be arrested because most investigators have little experience with true self-defense shootings.

In truth, the investigation does not stop because you won’t make a statement without an attorney present. My experience is that the investigators are in a much better position to conduct an interview after a day or two versus right after they’ve left the scene. During this time they’ve been able to examine the scene in detail, the physical evidence, take witness statements, find out more about you, etc.

REFUSING TO MAKE A STATEMENT

Are there times when you would want to refuse to make a statement? Yes. Even police officers may want to refuse to make a statement (invoke their right to remain silent) in a criminal investigation. Why? We have talked about the “politics of force” and the inherent dangers involved in a controversial shooting such as the media, “community activists,” politicians, political prosecutions, etc. We need only look at the George Zimmerman case to see that despite police investigators not finding probable cause, the investigator was removed from the case, the chief of police removed from office; the prosecution not revealing exculpatory evidence, but the case was still prosecuted an example of politics at its worst.

I have had discussions with attorneys who represent cops in shootings about this topic. Their take tends to be: 1) A voluntary statement is best because the officer did nothing wrong; 2) The investigators are fellow officers who are just doing their jobs and attempting to ascertain the facts; 3) If the officer doesn’t comply the prosecutor will simply subpoena them in front of the Grand Jury.

Refer back to the Case Study of “Bill” I listed earlier in this chapter, the officer who stopped a mass killer. Despite all the evidence that clearly indicated that Bill was a hero who had done nothing wrong, the county prosecutor refused to offer him immunity for his statement and his own department would not compel his statement under Garrity, which they could do.

Why? Because, despite the evidence leading to his innocence they did not want to take the potential political fall-out from offering him immunity from prosecution, they threatened to take this valiant officer into the grand jury rather than establish he did nothing wrong based on a professional investigation. It was only the threat of a press conference from his union representative that staved off their threats.

In a political prosecution, innocence is irrelevant because it is not about the facts; it is about appeasing the political machine. Truth be told, the community activists and politicians did not want to hear why George Zimmerman was innocent. They only wanted him prosecuted.

YOUR LEGAL REPRESENTATIVE

Getting the right attorney is paramount to successfully defending yourself in any criminal investigation and possible prosecution, but also for the possible civil suit to come. You should “preload” your legal defense now, instead of waiting until after the fact.

CASE STUDY

Soon after becoming a Deputy Sheriff I attended an Officer Survival course where the topic of post-shooting investigations and liability were addressed. It was recommended that I line up an attorney who I could call in the middle of the night, after a shooting or similar incident. I did so and have retained legal counsel through my police union or other means ever since.

This is not to say that every attorney is familiar with criminal law or self-defense in particular. Lawyers specialize and they may do more work as divorce attorneys, estate management, bankruptcy and other law rather than criminal. Even those lawyers who work as criminal defense attorneys may not know much about self-defense and traditionally only defend guilty criminal suspects. In my own experience working as an expert witness, I have dealt with numerous attorneys who didn’t know the first thing about self-defense, shootings, stabbings, use of force and related. They know the criminal justice process but they do not specialize. I have faced expert witnesses in court who were police officer and attorneys acting as experts, as well as prosecutors who didn’t know use of force law.

CASE STUDY

In one case I worked as an expert witness I was testifying in Common Pleas (State) Court for the defense in a case where an officer had been charged with Felonious Assault. My testimony was that he was innocent of all charges and his use of force was within the law. Additionally, how the Sheriff’s investigator had no training or experience in use of force and had botched the investigation. As part of my testimony I testified about the Supreme Court case Graham v. Connor and police use of force. On cross examination the Prosecutor handed me a copy of the Graham v. Connor decision and stated, “Well, Mr. Expert Witness, perhaps you can read to the court where that appears in the decision…” I took my time, found the section and read it aloud. The prosecutor stated, “That’s not what that means!” I looked at the jury and asked, “Do you want me to read it again?” He quickly moved on.

The officer was acquitted. The expert witness the prosecution was using was a sergeant from a police department in my state who was an attorney.

COUNTY PROSECUTORS OR DISTRICT ATTORNEYS

These folks are politicians through and through. That is not to say that there are not some highly competent and ethical prosecutors or assistant prosecutors in office, I’ve worked with some great ones, even prosecutors who later became common pleas court judges of high-repute. That said, a prosecutor is an elected official and most want to stay in office until they retire, term limits force them out, or they move to another political position or posting. Because of this they are more susceptible to the political winds that blow or the forces of local and national politics. If there is a case that garners national attention, i.e. the George Zimmerman case or a local self-defense case with a lot of community backlash, look for an indictment. Certainly don’t look to the prosecutor for a lot of knowledge on self-defense law or an understanding of the dynamics of deadly force confrontations.

CASE STUDY

A police officer was involved in a shooting where he fired at a suspect in a car who had drug him 80 feet before he was able to fall to the ground. The officer fired several shots at the vehicle as it was speeding away. The prosecutor stated in her report clearing the officer, “…although an officer cannot shoot a fleeing suspect in the back.” This statement is totally contrary to the law and shows ignorance for use of force and self-defense laws.

Even as a police officer I’ve joined an association, the Armed Citizen’s Legal Defense Network, Inc. Why? Because in the advent my agency determines that an off-duty shooting was not duty related or that I was not acting as a police officer, I’m on my own. The Armed Citizen’s Legal Defense Network will help pay for my defense following a self-defense shooting.

According to the Network website, the key points of their program include:

· Network members are educated to the highest standards, with new members receiving eight educational DVDs containing lectures by well-recognized subject-matter experts. Members receive a new educational program DVD each year with membership renewal.

· A fee deposit paid by the Network to the member’s attorney if the member has been involved in a self-defense incident. The deposit gets the legal defense immediately underway, with representation during questioning, and arranging for an independent investigation of the incident.

· Network members are eligible for additional grants of financial assistance from the Network’s Legal Defense Fund if they face unmeritorious prosecution or civil action after a self-defense incident occurring during their period of membership.

· Available expert witnesses – including internationally known trainers, experts and shooting industry professionals, attorneys and recognized leaders

· A unique, nationwide network of attorneys and legal experts which the member can draw upon after acting in self defense.

· A monthly online journal.

My local attorney is someone with whom I have worked on numerous police shooting cases. He is a strong advocate for officers. I just spoke with him about this very topic of armed self-defense and he concurred that the system (investigations and criminal justice) is certainly not prepared to deal with legitimate claims of self-defense by armed citizens.

MAKING A STATEMENT

If your attorney believes it is appropriate based on the circumstances, you may elect to make a statement. You should never make a statement without your attorney being present! In times of stress, post-incident, an attorney’s focus will be on protecting your legal rights. It is a naïve notion that just because you did the right thing and acted within the law that you will be vindicated by the criminal justice system and no amount of explanation by you will change attitudes or protect you. Are there times when such statements would benefit you? Absolutely, in most cases of legitimate self-defense a statement would benefit you. The police are not looking to arrest you for defending yourself and since you’ve done nothing wrong, your statement can oftentimes aid in your defense. That said, more and more today the politics of force arise and cloud the issue. The investigators may conclude you acted in self-defense and even sympathize with you but the prosecutor may still decide to seek an indictment. Further, the prosecutor may attempt to take the case away from the city and give it to the county or state investigators.

CASE STUDY

Five law enforcement officers are indicted by a county grand jury after the death of an inmate at a county jail. The investigation was taken over by the state Bureau of Criminal Investigation at the prosecutor’s request. The primary investigator used statements of each individual officer against the other showing inconsistencies and differences. These inconsistencies were used to allege that officers were lying. A suppression hearing was held on the admissibility of these statements in the prosecution. Only the fact that these statements were compelled under Garrity kept them from being introduced.

The statements, made under duress right after the incident, were flawed based on SNS perceptual narrowing and inattentional blindness. The officers simply reported what they were paying attention to, based on their flawed memory.

WHY A VOLUNTARY STATEMENT CAN HELP

Establishment of the totality of the circumstances

There are many other factors that constitute totality of the circumstances other than “I was in fear for my life.” Establishing your need for using force / totality of circumstances, include but are not limited to: communications from the suspect to you and you to the suspect, non-verbal communication, postures, body movements which you perceived as threatening, distances, environment, location, what you heard, felt in terms of emotions, lighting, perceptions, locations of participants and witnesses, etc.

Understand that you want to avoid making specific statements such as exact distances and rounds fired. The reason is that during an encounter you’re thinking with a different part of your brain, the part that does not deal with things like time, round count and specific distances. You are better to clap out the cadence to the gunfire and indicate distances by placing yourself at the distance from an object for reference, i.e. “If the chair was the suspect, I was standing here,” then position yourself.

CASE STUDY

Because of perceptual distortions – time, spatial, tunnel vision and hearing, as well as cognitive issues based on an SNS response – police officers are frequently wrong in the number of shots fired and other specifics. Dr. Alexis Artwohl has reported a case where an officer in a dynamic gunfight recalled “beer kegs with .45 ACP on them, flying through the air.” Clearly these were shell casing but it is indicative of the perceptual and cognitive impact of the SNS.”

Without a voluntary statement, especially if it were just you and the suspect, establishment of the totality of the circumstances may be more difficult and take longer for the investigators. With advice and consultation from counsel, it can certainly be easier to prove your case.

Articulation

“Explaining to the best of your ability, working with your attorney the totality of the circumstances of the incident including: time, environment, distances, lighting, suspect(s) words, actions and body language; your perceptions of pending deadly attack based on suspect’s words and actions; your words and actions; your attempts to avoid the confrontation or encounter and the suspect’s responses; attempts at verbal warnings or commands to the suspect(s) to back off, move away or stop and his responses; injuries and follow-up care; communication with police dispatch; potential witnesses”

MIRANDA

Most of what you know, or think you know, about Miranda and your right to remain silent is wrong. Like most people, even many attorneys, you have been educated by watching TV cop shows, where an officer handcuffs a subject out on the street and starts saying, “You have the right to remain silent…” Knowledgeable street officers and investigators would never do such a thing because once it is done, it cannot be undone if the suspect asks for his attorney. In proper interview and interrogation, an entire set-up leads to the point where the investigator finally says, “Okay before we talk, I need you to understand your rights…”

“Simply described, Miranda could be said to be warnings to a suspect administered during a custodial interrogation. For Miranda to be applicable to an interrogation, it must meet two criteria. First, the setting must be custodial in nature. The court has defined custodial to mean that the suspect’s freedom of action has been curtailed in some significant way. Second, the individual conducting the interrogation must be a law enforcement officer or acting as an agent for a law enforcement officer.” Practical Aspects of Interview and Interrogation, David Zulawski and Douglas Wicklander (CRC Press Inc.; 1993)

If I were investigating you for a homicide, regardless of the circumstances, unless you are under arrest, I would not read you Miranda. Matter-of-fact, I would probably say, “I appreciate you coming in here today to speak with us. You understand that you are free to go at any time?” After that, I would conduct an interview and everything you said could be used against you in a court of law. After a suspect has given a complete interview which then establishes probable cause of the crime(s), I would then say, “Sir, you’re under arrest.” Only then when the suspect is no longer free to go, does a “custodial interrogation” setting exist under which I would have to read Miranda.

If you have been placed under arrest on scene or at the police station, you should be read Miranda before any questioning. In such a situation, remember that prior to any questioning or interview that any statements made to any police officers can be recorded and may be used against you.

But understand that, even if Miranda is given, “everything you say can be used against you.” This is why it is so important to work with your attorney and have him present before and during any questioning.

CASE STUDY

Routinely police officers are not given their Miranda rights after an Officer Involved Shooting. They don’t “need” to be given the rights against self-incrimination because it does not apply, it is not custodial interrogation. However, there are reasons why an officer and his counsel may want them read. The reason for this is that it makes invocation of the right to remain silent easier and compulsion for officers then required.

Is there a benefit to being read your Miranda rights before making a voluntary statement? No.

If you are placed under arrest, Miranda applies and the investigator must advise you of your rights. Cooperation and a voluntary statement after arrest is a decision your attorney should advise on. However, the fact you have been arrested is an indication of the investigator’s belief that you are guilty.

IMPEDIMENTS AND ISSUES WITH MAKING A STATEMENT

Human memory is an interesting subject. To get a better understanding of how the brain works and specifically under stress I would suggest Robert Sapolsky’s excellent Why Zebras Don’t Get Ulcers (Third Edition, Owl Books, 2004). When an officer (or for that matter any witness) has experienced an SNS (Sympathetic Nervous System – fight or flight) response their memory is substantially impacted. The autonomic nervous system is compared to the voluntary nervous system. From Sapolsky’s book, “the voluntary nervous system is a conscious one. You decide to move a muscle and it happens. The set of nerve projections to places like sweat glands carry messages that are relatively involuntary and automatic. It is thus termed the autonomic nervous system, and it has everything to do with your response to stress. One half of this system is activated in response to stress, one half is suppressed.” If/when an officer is involved in a dynamic event he may go from the higher functioning Parasympathetic Nervous System of his brain to the SNS. The brain literally changes the way it does business with the limbic system (amygdala, hypothalamus, hippocampus and more) or the emotional centers of the brain taking control. This is responsible for perceptual distortions such as tunnel vision, auditory exclusion, or time distortions. Short-term memory versus long-term memory and emotionally charged memory are apparently stored in the brain differently. Sapolsky states that in studies the SNS improved memory retention up to a point, “People in the learning and memory business refer to this as an “inverse-U” relationship. As you go from no stress to a moderate, transient amount of stress – the realm of stimulation – memory improves. As you then transition into severe stress, memory declines.”

Thrown into the mix of the SNS response and the perceptual distortions that may occur is the issue of inattentional blindness. Brought to the law enforcement community through the fine works of Bill Lewinski, PhD and the research conducted by his Force Science Research Center, www.forcescience.org inattentional blindness is oftentimes explained by the Gorilla experiment conducted by Christopher Chabris and Daniel Simons which is detailed in their book The Invisible Gorilla (Broadway Paperbacks, 2009). Chabris and Simons engineered a videotaped experiment in a hallway at Harvard University. Chabris and Simons had graduate students in white t-shirts and black t-shirts moving around and passing basketballs back and forth to each other. When viewing the tape volunteers were asked to count the number of passes by the white clad participants and ignore the people in the black t-shirts. You can and should view this experiment right now at www.theinvisiblegorilla.com before you read on.

After viewing they were asked how many passes were made by the participants in white. Varying answers are given but the truth is that it doesn’t matter, the sole purpose of the experiment was to see if those volunteers tested saw the person in the gorilla suit walk into the middle of the screen, stop, thump its chest and then walk off.

According to Chabris and Simons in their book, “Amazingly, roughly half of the subjects in our study did not notice the gorilla! What made the gorilla invisible? This error of perception results from a lack of attention to an unexpected object, so it goes by the scientific name “inattentional blindness.”

Kevin R. Davis, Use of Force Investigations: A Manual for Law Enforcement (Responder Media; 2012)

Do most police investigators know about the SNS, perceptual distortions under stress, inattentional blindness, or how human memory works? No. Sadly much of the science of human conflict, performance and recall post-traumatic incident is not widely known in law enforcement. Also remember that in most agencies a detective assignment is not a promotion based on performance or knowledge but rather an assignment based on seniority. A detective or investigator this week may have been a patrol officer last week. There are certainly exceptions and this is not meant to impugn the abilities of detectives. It is simply telling the truth.

CRITICAL INCIDENT AMNESIA

Lt. Col. Dave Grossman and Bruce Siddle from Warrior Science Group, penned an article entitled, “Critical Incident Amnesia: The Physiological Basis and the Implications of Memory Loss During Extreme Survival Stress Situations” which was published in Issue 31, August 2001 issue of The Firearms Instructor: The Official Journal of the International Association of Law Enforcement Firearms Instructors. From that article:

“Officers who encounter an extremely stressful situation will consistently exhibit difficulty in transferring information into long term memory. Particular memory related phenomenon in traumatic situations include:

1. During the actual incident there is usually a “sensory overload” combined with a “fixation” on some particular aspect of the critical incident, often to the exclusion of all else.

2. Immediately after the incident, “post-incident amnesia” will often result in a failure to remember the majority of the information observed in the incident.

3. After a healthy night’s sleep there is usually a “memory recovery” which will result in the remembering the majority of what occurred, and this memory is probably the most “pure.”

4. Within 72 hours the final and most complete form of memory will occur, but it will be at least partially “reconstructed” (and therefore somewhat “contaminated”) after the inevitable process of integrating available information from all other sources (media).

…there is a body of research which indicates that intense stress will result in a failure to recall anything learned in a situation (Duncan, 1949; Squire 1986). McGaugh (1990) and Khalsa (1997) indicate that this effect is due to the flood of stress hormones in the brain which occurs during intense trauma. The combination of these factors will very often result in “post-incident amnesia” in which, immediately after a critical incident, the majority of information will not be remembered. (This can explain, for example, the common process by which most mothers tend not to remember the intense pain of childbirth, and are subsequently willing to have more children.)

The greater the trauma, the greater the impact of post-incident amnesia is likely to be. Key factors which will increase the stress include: the perception of threat or danger, the suddenness of the threat and the available time to respond or prepare, the amount of sensory input needing to be processed, and the degree of physical effort (aerobic and anaerobic output) that was engaged in during the incident. If the individual is physically wounded or injured the effect will be even greater, and the effects of post-incident amnesia will be greatest if the wound or injury results in unconsciousness.”

The perceptual narrowing of the SNS response as well as its impact on memory and recall mean that there may be lapses in recall, or segments of the event in which you simply cannot recall.

SCIENTIFIC STUDIES ON MEMORY IN TRAUMATIC EVENTS

How does all this relate to a post incident statement or interview? You can only report what you were paying attention to and within the ability of your recall or memory.

Let me refer to research completed by Dr. Andy Morgan psychiatrist from Yale University on more than 500 soldiers completing escape and evasion training at Fort Bragg. After being interrogated (simulated military enemy interrogation but high stress) one in three of the participants (Special Forces personnel, some pilots and Marines) were unable to properly identify their interrogator, often even getting the gender wrong, this despite being in the room alone with the interrogator for over half an hour. Live line-ups resulted in a (26%) accuracy rate, photo spread (33%) accuracy and (49%) in a photo sequence. From the study, “These data provide robust evidence that eyewitness memory for persons encountered during events that are personally relevant, highly stressful, and realistic in nature may be subject to substantial error.”

(Accuracy of eyewitness memory for persons encountered during exposure to highly intense stress; Morgan, Hazlett, Doran, Garrett, Hoyt, Thomas, Baranoski, Southwick; International Journal of Law and Psychiatry; 27 (2004) 265-279)

VIDEO

“Use of force is like making sausage. Even when it’s done properly, it still doesn’t look good.”

~Ed Nowicki (Chicago PD ret., legendary trainer and founder of ILEETA)

I began this chapter with the real life story of a police officer who was indicted based on a video that did not even capture his actual shooting. It is entirely possible that your event may be captured on video. With the proliferation of cell phone video and surveillance technology, the violent encounter may be captured by a camera on a storage unit a half a block away. The problems with video are two-fold:

1) Investigators improperly interpreting what is seen on the video

2) Comparison of your statements with what is seen

CASE STUDY

Officers are captured on a gas station video surveillance system apprehending what we are later told is a suspect in possession of a stolen car. The suspect is handcuffed behind his back, and leaned over the trunk of a police patrol unit. All of a sudden one of the police officers is seen reaching over and punching the suspect in the face/head area.

Two of the officers involved are disciplined. The officer who punched the suspect is fired. During the disciplinary hearing we find out that what was not captured on video was the suspect, though handcuffed behind his back, reaching back and grabbing the officer’s testicles. The officer was forced to punch the suspect to get him to let go. The officer was reinstated, subsequently sued and won sizable damages against the agency.

Since the Rodney King video and into the YouTube age, we have been inundated with police use of force videos. As more and more incidents of armed citizens defending themselves are occurring, we are beginning to see these incidents captured on tape. But what we see is not the whole story and the two dimensional aspect of video can distort the “facts.” We should never make a decision on a use of force based strictly on the visual image provided by video.

Even in the State Court trial of the officers involved in the Rodney King case, Sgt. Charles Duke a legendary L.A.P.D. use of force instructor defended the officers with the tape by breaking the video down frame by frame. Sgt. Duke testified that only reasonable force was used against King. Regardless of your opinion on that case, my point is that videos of use of force incidents that look bad may in fact be completely reasonable.

As graphic or seemingly encompassing as video images are on use of force incidents, they are not the whole picture. All of the other facts and evidence of a solid investigation must be considered before reaching a conclusion.

Dr. Bill Lewinski from Force Science had this to say about videos of police use of force: “People tend to think that a video is an accurate reporter of any particular incident. But I would like you to look at the number of cameras that are necessary for referees to look at any football game. The more cameras they have the more angles they can see things from the better their judgment is about whether or not the action their judging is portrayed accurately and completely. So we know that one video camera from a particular perspective is very limiting in its ability to see anything. Even for instance there’s a camera that officers are wearing that sits just in front of the officer’s ear. And this reportedly has a view of the officer. It does not. If you close your left eye, for instance, you will see what your right eye sees and your right eye sees a different field of view than your left eye. And your body links both of those. Now imagine you’re a camera far behind your right eye, what does that see? It’s seeing what’s directly in front of the face not even what the right eye is seeing. It really doesn’t show the field of view on the left. No camera records things as an officer’s eye and brain is recording it that’s really embedded in the situation. Just as a quarterback is seeing a different field of view than the viewer sitting at home watching the camera capture the action on the football field.” (Dr. Bill Lewinski, Lane County I.D.F.I.T. (Interagency Deadly Force Investigation Team) video, Lane County, Oregon District Attorney’s Office)

The danger exists that investigators will obtain a video that looks different or depicts events differently than what you state occurred in your statement. This creates a problem because you are stating, A) your perspective of what occurred, when the video looks like B) what actually happened. As we have stated above when dealing with memory this is completely understandable. The problem arises when the video is compared to your statement and the conclusion made that you are lying or covering up. This is such a problem with law enforcement officer involved shootings that it is recommended that officers and their counsel watch the video before they make a statement!

This luxury will probably not be afforded to you and your attorney. Your attorney may ask if any video evidence exists but it may not be shown to you until later. If you are charged with a crime, it will not be shown but will be available through motions of discovery by your attorney.

Once again we can draw parallels between an officer involved in a shooting and a citizen. The officer’s police union and/or attorney can ask to see the video or it may be allowed per policy. The private citizen’s attorney will have to negotiate or ask.

Just understand that video evidence has gotten many police officers in the jackpot based on perceptions of untruthfulness by their agency when compared to written reports, and police investigators may have trouble interpreting what they see.

PRELIMINARY HEARING

The preliminary hearing is where the State, and only the State, provides evidence at a “probable cause” hearing to show that there exists sufficient evidence to bind the person over to the grand jury. In some locates this may mean that you as victim may be forced to testify in front of a judge. This will entail a local prosecutor presenting the basics of the case to the judge to establish probable cause. This may also mean that just the responding uniformed officers or detectives testify and not you as prosecuting witness. There is the chance for the defense attorney to question witnesses as well. I have had contentious preliminary hearings from some attorneys in the past where they basically accused me of falsely arresting their client. The right to hold a preliminary hearing can be waived by the defense attorney.

CASE STUDY

Years ago while working uniformed patrol in a high crime district and then street narcotics, I had occasion to appear at preliminary hearings on a weekly basis. Sometimes defense attorneys would want to hold a full hearing, sometimes they had their client sign a waiver to the hearing after finding out what the evidence against their client was, so the next step would be having the case sent to the grand jury. In some cases the attorney would have a hearing just to show their client they were doing something.

In many busy jurisdictions they have televised preliminary hearings as well as Direct Indictment Programs. In DIP programs the DIP investigator presents the case to the judge from the police reports, which eliminates the need for the officers, investigators or witnesses to testify at the preliminary hearing.

THE GRAND JURY

If you have signed felony charges against the perpetrator you will be called in to testify at the grand jury.

As the victim, you are the “prosecuting witness” against the suspect. In order to have the suspect indicted for the felony, the grand jury must vote and reach a True Bill (versus the grand jury voting no or a No Bill). Having testified in front of countless grand juries over the years, the process is pretty simple. You walk into the grand jury room with jurors seated at tables usually to your front on either side of the witness stand (which is a table with microphone for recording the case). A grand jury foreman administers the oath, “Please raise your right hand…” in which you promise to tell the whole truth under penalty of perjury and then take your seat. An assistant prosecutor will read the case, “Mr. Davis is here today reference case 14-0981, State of Ohio vs. John Doe. Mr. Doe is charged with Felonious Assault… Mr. Davis why don’t you tell us what happened.” The prosecutor may ask leading questions to flesh out the probable cause and totality of the circumstances of the crime committed against you. Grand jurors may ask questions as well. Keep in mind that neither the prosecutor handling the case or the grand jury has much, if any, experience with legitimate self-defense cases. They may have handled the case of a doper who shot another doper and claimed self-defense but not of an innocent citizen with a concealed carry permit or gun in the home who shot and killed, shot and wounded or shot at a criminal suspect.

Can you appear in front of the grand jury as a prosecuting witness and invoke your 5th Amendment right against self-incrimination? Yes. If you or your attorney believes that this case is turning against you and there is the possibility of you being indicted exists, then you may want to invoke your right to remain silent.

You may take your attorney with you to the grand jury but they may not be in the room with you while you testify. If a question is asked that you feel may incriminate you or that may lead to a political indictment, ask the prosecutor if you may step outside and speak with your attorney.

Attorney Muna Busailah, writing in: Vol. IV, Issue No. 3 of the Michael P. Stone, P.C., Lawyers “Training Bulletin” (May, 2001) on “Taking the Fifth” – Part IV: “When Might An Answer To A Question Tend To Incriminate Me?

“The privilege against self-incrimination inherent in the Fifth Amendment “extends not only to answers that would in themselves support a conviction…but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute claimant…it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”

POST-INCIDENT BEHAVIOR

CASE STUDY

In a shooting in which I was involved in on Sep. 11, 2001, I was lying in bed with the mental “video” of the incident playing in my head. As I was laying there, I can actually remember at one point thinking, “Did I really see a plane fly into the World Trade Center today?”

Over the years I’ve talked to numerous officers involved in shootings. The biggest thing I can say is that this mental video will play in your head for a few days, whether awake or sleeping. You may have a good night’s sleep and then wake up and the first thing that happens is the video will play. This will usually only happen for a few days and then you’ll “shake hands with the event” as your brain assimilates the event. PTSD occurs when you get “stuck” in the event and are not able to assimilate it into everyday life.

There are several things I recommend to folks right after a traumatic event:

· Avoid alcohol. Alcohol is a depressant and you’re already dealing with some pretty serious emotions.

· Avoid caffeine. Do you really want to throw kerosene on a raging fire?

· Exercise. Even a simply walk can help burn off the residual stress chemicals.

· Don’t talk about the incident. Only talk specifics with professionals who have legal confidentiality, i.e. spouse, minister, attorney, and mental health counselor. This includes refraining from Facebook® or similar social networks or forums, even those like gun forums which you post under a user name other than your own. In these incidents, you don’t know who your friends are.

· Seek a CISD – “ critical incident stress debriefing” or similar with a qualified and certified counselor who is covered by confidentiality. Having gone through several of these as both an officer involved and helping to conduct a debriefing, I would state that these debriefings help. As a psychologist and veteran police commander has stated, “You are only as sick as your secrets.” Be careful when picking an attorney, if you can find who does this for the safety forces in your area, they are more in tune with the issues involved versus a standard psychotherapist. Many psychotherapists and even many clergy members are anti-gun and may not be the best source.

· Understand that these are normal reactions to an abnormal situation. You may experience insomnia, appetite loss, depression and a variety of other reactions. If you seek help, work it out and talk it out, you’ll be okay. Once again, a victim advocacy group may be able to help.

· Many times reactions to a traumatic event have to do with what other stressors are going on in your life. A multitude of other issues – money, marital, etc. – may compound your stress. Once again, it’s natural, just work through it.

· Understand that this event may change you forever but you can grow from the experience. It is up to you and how you work through it.

· Expect to feel an increased level of precaution and threat. You’ve been through a life threatening experience, this is natural. Remember it’s not paranoia or an unreasonable fear. Your fear, based on your experience, is completely reasonable.

· Use your autogenic breathing and deep relaxation techniques.

CASE STUDY

At one stressful time in my life, I was being investigated by Internal Affairs; I used autogenic breathing to relax on a regular basis. When I.A. cleared me and “spanked” my accusers (the investigation was used as retaliation), I had my blood pressure taken for a routine physical and it was 120/80. I credit relaxation techniques and regular walking for exercise with keeping my stress levels down.

· Be careful about talking to the media. A simple, “This is under investigation and I’ve been told by my attorney that I should not make a statement at this time,” plays better than a stern, “No comment!” or covering up your face and pushing through the cameras.

· Don’t read the press or watch the news about your event. Understand the old news catchphrase “If it bleeds, it leads.” I’ve worked on cases defending officers that made headline news when they were indicted or charged. Once the charges were dropped or they were vindicated, no mention by the media.

Work your case; actively work on your defense: When working with attorneys, understand their caseload may be extreme and that “the squeaky wheel gets the grease.” Don’t be a pain but don’t let them relegate you to the back burner.

Successful self-defense strategy takes time and work. Your attorney must be focused on your case!

CASE STUDY

I once had a meeting with an attorney on a Saturday morning about a prospective civil case. The man was a former prosecutor and extremely competent in that job. However, I had to call him at home and wake him up; he arrived late to his office in a wrinkled polo shirt with the sticker from an apple stuck to his shirt. He hardly inspired confidence…

Training as part of a defense strategy: Training offers a win/win proposition. First of all, you are more likely to survive the encounter and win the day with solid training under your belt. Next, training may be introduced into your defense as well as your trainers or instructors taking the stand as expert witnesses explaining to the jury why what you did was reasonable.

This is why you want to attend vetted training programs with competent instructors who can both offer professional testimony and survive a close examination into their background! Unfortunately there are some good instructors out there who are all but pathological liars. Convictions for crimes of violence, fraud, YouTube video rants threatening government agents, etc. will all be easily found out and used to impeach your instructor.

CASE STUDY

I was retained on a case to defend a police officer in a use of force. The attorneys asked if I knew the plaintiff’s expert. I checked into him and found he had been fired from his last agency for surfing the internet for porn while on duty. He ran a landscaping business as his full-time profession.

CASE STUDY

One instructor who has even taught at a state police academy on contract has fraudulently represented his background for years and years. Among other things, he once claimed he was a member of Delta Force and a small arms, demolitions and hand-to-hand expert, all while serving three years in the Army!

In police search and seizure, evidence obtained improperly or not within the law, i.e. evidence obtained when a search warrant should have been obtained, is known as “Fruits of the Poisonous Tree.” This means that since the search was illegal, all evidence obtained from that search cannot be used in prosecution of the case. I liken the training received from frauds, convicted persons or easily impeachable instructors, as “fruits of the poisonous tree.” Meaning that the training may have been good but the instructor cannot take the stand because of credibility issues.

Vet your instructors! Even police officers and trainers succumb to the “cult of personality” accompanying many “internet” wonders and “high-speed-low-drag” instructors. I’ve had the opportunity to meet some of the real deal guys. Most are very low key and don’t walk around bragging about their exploits.

SUMMATION

If you are claiming self-defense, then it will be up to you and your attorney to prove that case, to police, to prosecutors, to the grand jury, possibly even to a state court jury if you are tried for homicide, that you acted as a reasonable man would have in like or similar circumstances. Sometimes that is not necessarily easy to accomplish.

Having an attorney, on call, one who has a working knowledge of these types of cases and is willing to roll out of bed at zero-dark-thirty is vital. Understand that you want to cooperate with police as much as possible without endangering your case. You are the victim of a potential murder, felonious assault or other crime! But you must protect your rights! Remember, the system is not set up to deal with legitimate cases of self-defense and you will be most likely treated like a suspect. You want to point out where evidence is located, who and where the witnesses are, point out that you are the victim of a crime and are willing to sign charges. Then make the statement that, “I am willing to cooperate but I want to speak with my attorney before any other questioning and to have him present before I make a statement.” Veteran defense attorneys have made the statement, “When in doubt, shut up and ask for your attorney.”

You can win the case just like you can win on the street in a violent gunfight. It just takes training, preparation and attention to detail, just like your firearms training and street concealed carry!

Note – I’ve dealt with some of the issues dealing with the criminal aspects of the use of deadly force, i.e. the criminal investigation with you as victim, suspect and possibly as the focus of a criminal prosecution. What I have not dealt with is the civil case that may arise out of your use or threatened use of deadly force, seeking monetary damages in municipal or state court for injuries and other alleged loss. The groundwork that you lay working with your attorney in the criminal investigation will only help you in a possible civil case. Put simply, a good solid defense and proper statement will seriously reduce the probability of a civil action. Although I’ve worked on civil cases as an expert witness, it is vital to get the proper competent and knowledgeable attorney for any civil action as well. You can be completely vindicated by the investigators and prosecutors in a criminal investigation and still be sued in state court. Keep in mind, the standard is much lower in civil court – preponderance of the evidence, versus the criminal court standard of – guilt beyond a reasonable doubt.