Tuesday, July 6, 2010

For the Defense: Phoning it in

In the moments immediately following a lethal self-defense fight there is an existence of perverse intimacy.

No firearms instructors ever talk about it. That is the reality of being in the same room, the same parking garage, the same empty backwoods trail as your attacker dies and bleeds out because you have done this to him. His life having either left him or is leaving him as he struggles, kicks, moans and dies. It is a dark moment on anyone's life. You may be alone, you maybe with your loved ones, or a completely innocent by-stander, either way, there you are.

There are conventional rules of engagement for the good guys, though they are for the most part unwritten. The first is that you call 9-1-1 and that you stay where you are.

Once while working a kidnapping case in a very rough borough in mid-western city my local contact advised me to make one of two choices should I find myself in a gunfight. The first was to have all my brass wiped clean of fingerprints and get out of the city as fast as possible. Kidnapped victim or no Kidnapped victim. The second was to call the police tell them I was involved in a shooting and that I was driving myself to the hospital due to chest pains. I was advised not to stand pat because the local drug lord owned all the cops that would be responding and, my life expectancy would be precisely: zero

In the end I resolved the situation without a round fired and lived to tell the tale, never having to use my pre-laid decision.

Conventional dictum, rattled off very fast and passed over far too quickly goes something like: "shoot-to-neutralize, reload, threat assess, call 9-1-1 and wait for the Calvary to come pick up the trash".

The problem can lie with the Calvary. And while I may ruffle a few feathers understand it is not my intent, nor is it to make nefarious accusations. Don't read it as such. When officers respond to the scene of a shooting they bring with them some predisposed items. Some is training, some is life, regardless when the first couple of Cops arrive they have to contend with the fact that:
  • everyone with a gun is a bad guy until verified otherwise
  • things are probably not as they are claimed
  • their personal safety is at risk since they know at least one person has willingly pulled the trigger.
  • their partner's safety
  • regret over eating that thing they ate they wished that they hadn't
  • unanswered questions at the scene that revolve around a very violent situation
  • insert life here
The point is this while you are looking at the dead man in the hallway whose chest just stopped rising and falling forever your life as well is forever changed. And the only "for better" part is that you are still alive.

For the first responder it's another day on the job (at best). And when they arrive maintaining the integrity of the crime scene is not as important as making sure any threat is dealt with. The honest cop will tell you that there are more than a couple of idiots on the force that they they have to contend with. The know-it-all, the over-eager, the unprofessional lazy tool, the anti-gun, anti self-defense jerk that the rest of them hate working with.

You may now be working with him as well.

I know of one case where the Cops responded to a father shooting his daughter's abusive ex-boyfriend in the front yard. The Ex-BF showed up drunk with a gallon of gasoline and began dousing the front yard. They also found later that he had several guns in the car and it was thought he planned on shooting everyone as they came out.

Dad responded to the arsonist by killing him via several well placed 9mm rounds to the chest. Everyone saw it as a clear cut case of self-defense.

The local Prosecutor however was bothered by the fact that the shooting took place outside the home, coupled with the fact that two shell casings were missing. In his infinite wisdom the Prosecutor decided that the father must have picked up two of the casings for one reason or another. Charges were filed against him for tampering with a crime scene.

The reality was, a Rookie wanted a souvenir from his first "crime scene" and took two of the spent rounds. Fortunately he fessed up.

What if he hadn't.

There also exists another problem. Should the Bad-Guy-in-Question not be dead the Paramedics are surely going to arrive and try to save him. In doing so a crime scene may get changed. Blood smeared, brass kicked, couches moved, cars made to be backed out of the way.

All well intentioned, but changed. Changes that may, and to be fair, may not hamper your plea of self-defense.

I once witnessed this personally. Walking down the street late in the evening of the Urban environment I lived in when I was single I witnessed two males come out of a club in a bloody fist fight. All was not what it seemed. One was empty handed and the other had a busted bottle and was attempting to slash him, and succeeded pretty well in doing so. When the sirens began wailing he dropped the bottle in the street near the curb. Surprisingly it didn't bust. That is until the ambulance arrived and pulled on top of it. Evidence was crushed. Literally.

My lingering thought was this. What if that had been me and I had been forced to shoot him. I could then only rely on my claim that he had a weapon and witnesses that surely would have included his friends. What then?

The Point.

There is nothing illegal about you taking pictures of the crime scene. Period. The Defense (you) has a legal right to collect and maintain evidence as long as the evidence is not in and of itself illegal (think: unlicensed automatic weapons, illegal drugs, etc).

Therefore your new best friend maybe that little phone in your pocket with the camera.

Unusual, unorthodox yes it is. Some may question that this shows a disturbed state of mind to willingly take pictures of the deceased, but you have to realize that pictures are going to be taken. If its out on the street or in a public location you can rest assured the new media in a chopper somewhere is going to have aerial photographs (which you may also want your lawyer to subpoena). They just generally don't show it on the evening news out of decency these days.

I would point out if I were retained as an Expert Witness that the defendant was extremely sober minded and was very well educated in the matters of self-defense and had read case after case of over zealous Prosecutors going after "Victims".

If your pictures correlate that of the police then it reinforces your position.

However, should you find yourself at the mercy of a Prosecutor who cries murder you have the very first photos of the crime scene when it was you and the attacker prior to anyone else showing up and possibly altering the crime scene, unintentional or otherwise.

This establishes doubt against the the Prosecution's case in both the Judge and Jury's mind. Doubt is what wins in court.

It is generally accepted in court that the Defense is not required to provide Inculpatory (points to guilt) Evidence or Exculpatory (points to innocence) Evidence. The burden is on the Prosecutor, or in the case of a wrongful death suit the Plaintiff's attorney.

If you find yourself in an altercation that has not gone physically violent, but is escalating, take the Perps picture of him screaming threatening, etc. If you can, turn on your phones "voice memo" recorder and get a sound bite of his threats, his ranting, etc. Should you be forced to enter into a lethal encounter against the B-I-Q photos prior to it demonstrate that you were going to call the Police and give them the criminal's photograph of him for future use in his apprehension. What we all essentially know in the world of defense is that you are going to defend yourself far more in life with words that you ever will with a weapon. Having a sound bite and/or a photo that you are trying to de-escalate the situation or at least not the aggressor in the circumstance is a feather in your cap.

You want as many feathers as you can get.

Use your intellect that God gave you. And think about this long before you find yourself there. Training of any type starts in the brain first and having a plan (Rule 13) will help you implement it when the deal goes down.
  • Call 9-1-1 and report it, THEN take the photos. You don't want your Attorney to present them as evidence and the other side point out that the time stamp on the photos is three minutes earlier than your call to the LEOs. It makes you look creepy and perverse.
  • Don't take five thousand photos (again points to creepy) take five maybe a dozen if time allows for it. This will greatly depend on the response time of the Cops. I would advise taking pictures from where YOU were when the feces hits the impeller. Also known as POV (Point of View). As horrendously morbid as it sounds I would take a picture of the attacker especially if he is not dead. Your goal is to maintain integrity of the crime scene that paramedics could potentially disturb. It simply is what it is.
  • Take whatever your photos you can or need before the Police arrive. At the sight of the first flashing light. Stop....stop taking pictures. You don't want an Officer on the stand later saying "when I walked in the Defendant was taking photos of the scene. Remember me mentioning the creepy factor, it's worth mentioning again.
  • Don't play amateur detective if there is some extraordinary amount of time between your 9-1-1 call and the arrival of Law Enforcement. Leave everything alone. If the perp is alive, Don't Talk with Him.
  • Don't.
  • Don't move, touch, disturb or breath hard on anything you NEVER alter the crime scene to make it more favorable to you. This is the very reason you are taking your own photos. You don't lie to defend your integrity.
In the end. Keep your mouth shut about taking pictures. This is to be shared with your attorney and your attorney alone. No one else. Don't saddle up along side the responding Officers and say "yeah I got some pictures as well." Because at that point your phone just became evidence in whatever way the Governing powers see fit to use them.

The justice system here in the United States is an adversarial one. In theory at least, and the defense is supposed to meet the Prosecution on equal ground. Resource against resource, argument against argument and strength against strength. It is what ensures that the system works properly. Your Defense attorney (and your bank account) has an overwhelming fight against the broad and powerful resources of the State.
You are simply trying to close that gap.


William said...

Talk about something that didn't mention in CCW class. Brilliant.

Posts like this are the reason I keep coming back over and over.


Nate said...

What about administering first aid to the bad guy? Shoot, reload, threat assessment, 911, first aid. I realize that the bad guy surviving might open the door to him suing you, and yes, he did just try to kill you (we assume). But I don't know if I could just take pictures of a dying man if I thought I could save him. I'm an ER Nurse, so have a little more background in first aid than the layperson, but I'd bet most of your readers are familiar with opening airways and occlusive dressings, things like that. There are always variables that would prevent me doing first aid, but assuming none of those were present, what would you do?

Nate said...
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Anonymous said...

If you think you would save the terrorist you just shot out of being a humanitarian then you should leave your shooting for the target range.

Nate said...

I expected something like that in response, but not so quickly and from "Anonymous" that's a shock. But seriously if the threat to yourself and your loved ones if defiantly over, why not a little first aid? To be clear, I've got no problem killing to save myself and those around me from harm, and if I still felt threatened I'd retreat from the scene and let the bad guy die.

Daddy Hawk said...

@Nate. If I read the point of our instructor correctly, his admonition assumes that any efforts on your part to administer first aid would compromise the integrity of the crime scene potentially leading to an adverse result on your self defense defense. Besides, if the assailant is not dead, technically there remains a potential threat. I for one would not want to get within arms reach of the person I just shot on the chance they might want to return the favor.

Tony said...

This is very interesting advice, and well thought of - except for a single issue which I have some trouble with. As Rory Miller writes in his book: Bad things happen in bad places. Hanging around in a place in which you just had to defend yourself usually seems (as a generic rule-of-thumb, of course) less than prudent to me. The bad guy might have friends nearby, etc.

Of course in a home defense scenario you're likely to stay put, but in the assault in a parking garage type scenario, hauling ass to somewhere safer seems to me like the tactically safest option. You can call the police just as well while you are moving to a safer location.

DaddyBear said...

If you have time, I'd suggest emailing those photos and voice memos to either yourself or your lawyer. Get a copy off of the phone as quickly as you can! If you get arrested, that phone is going into an evidence locker, and the police might be curious to see what's on it. And DO NOT edit them in iphoto or photoshop. If you do anything to them, even cropping them, it could be construed as tampering with evidence. Let your lawyer start a chain of custody with them and have a professional do any work he or she wants done.

I wouldn't suggest leaving the scene of a shooting unless there is an immediate threat, and I'd be on the horn with 9-1-1 telling them that I'm leaving the scene, where I intend to go, and why. That way you don't look like you're fleeing the scene of a crime.

Anonymous said...
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Anonymous said...

Good stuff as always. To this, I would add one thing that my Theology Professor (a former U.S. Marshal) drilled into us time and time again: When the LEO's and EMT's arrive, say nothing--absolutely nothing--apart from the exact words, "I used the minimum amount of force necessary to contain the situation," until you are with your attorney.

Remember, you will be Mirandized, regardless of perceived or ultimate guilt or innocence. When the officer puts the chrome bracelets on you, you will hear the words, "...anything you say can and will be used against you in a court of law."

Officer Friendly is not there to be your friend. Don't chat it up with him. That's what you'll be paying your lawyer for

Rivrdog said...

Armed and Christian didn't finish. You ALWAYS tell the responding investigators that you were in the WORST fear for you life. You tell them that FIRST, you tell them that LAST, and you might throw it in a few times in the body of your statement as well.

Retired LEO.

Carl said...

Law enforcement officers are now being told NOT to Mirandize subjects in custody unless the officers are going to interrogate them. That means that ANYTHING you say can be used against you. As an LEO I can assure you that Big Brother is changing the way he is doing business with subjects of the gov't. Say nothing, get a lawyer.

Bret said...

Very good post. One word though, exculpatory. Your definition states to point to guilt. the actual definition is to free or vindicate or clear of blame and guilt. Overall, very good , well thought out advice. You are a very , very good professional

Matthew said...

Thanks Bret. Lack of coffee was probably to blame.

J. Lee Weems said...

"No instructor" addressing the subject isn't accurate as there is a block on it in the NRA Personal Protection In The Home course; so, every NRA PPTIH instructor is discussing it. I presume that it is also in the Personal Protection Outside the Home course, but I haven't taken that sequence yet.

Ayoob, agree him on things or not, has been beating this drum for quite some time.

I'm sure that there are others.

I discuss it in every class that I teach.

I offer the above for clarity's sake and not to detract from the intent of the post.

Joe don't row said...

I think he meant it in the general sense of society term. Not: no one, not ever.

J. Lee Weems said...

I realize that he didn't mean it literally. I do think that the topic is more commonly discussed than the article figuratively implies though.

Anonymous said...

Good post, and as a LEO see nothing I can really disagree with.

The "cops in the pocket of a drug delear" part gets me riled up, but I am salty enough to realize that this can be a distinct possibility depending on WHERE you are.

A few things in the comments..first aid...while doing so MAY help you later, the risk of approaching someone who recently tried to kill you and is unsecured is probably not a good idea. I wouldn't even do so until I had some cover officers, had the BG cuffed and had seaarched him for weapons.

On the "say nothing" part...in general that is probably the wisest move, however from MY point of view, NOBODY telling me the basic story of how this guy got shot is probably going to result in your arrest.

Depending on the situation you may want to formulate a basic explination of the incident. If it was a blatant street robbery and you were defending yourself you would probably be going home that night. If it was some dispute with your drunken brother-in-law who stuck you with a steak knife during a fist fight that you started...well THAT is an entirely different story. Your actions may be entirely justified, but trying to explain yourself without a lawyers help would be a bad idea.

Like anything else, the easiest way to give advice is through simple rules of thumb, however "the best" thing to do really depends on your situation, your training and your presence of mind.

Anonymous said...

[quote]however "the best" thing to do really depends on your situation, your training and your presence of mind.[/quote]

Presence of mind. Something you will likely be without, given the fact that you have just been in a very serious altercation with someone who is now (presumably) dead.

If I were a LEO (and I'm not) and I came to a crime scene where the only survivor is calmly walking me through the events and happenings, it would garner a lot more attention from me, than if the person said "I'm sorry, I can't think straight right now- that guy tried to kill me, and I.. I need to talk to a lawyer"

Agree with the comments regarding First Aid for your assailants. I don't want to get close enough for them to exact revenge, and I don't want a bystander to mistakenly say "after he shot the guy, I saw him kneel down next to him and pull out his knife- I don't know what he was doing, but when he got up he said 'guess he's not going to make it'..."

FWIW, my self-defense magazines and ammo are all meticulously cleaned, just in case I need to make a hasty exit from the area.
Too many people 'round here have gone through very bitter legal battles for defending themselves..

Anonymous said...

Well...not much to debate you on there, but if you try to "hide" from a legit self-defense situation and get identitfied later, suffice it to say that I don't see that playing well in front of a jury.

Will said...

Anon @11.41:
Ayoob has worked a few cases where the victim ran after a legitimate shoot. The DA will tell the jury that "flight equals guilt". Those people are still in prison. Yeah, you might get away with it, but the odds get worse every year with cameras everywhere.

you are a fool if you go anywhere near the BG, except maybe to kick his weapon out of his reach.

You think you will have steady hands after the major adrenaline dump you just had? Or, say you are in the middle of doing something for the BG, and THAT is when you start shaking? And he dies BECAUSE you started playing doctor and couldn't finish it right? It will be WAY too easy for the DA or the perps family lawyer to accuse you of deliberately finishing the job you started by shooting him, if he dies or suffers some complication. STAY THE HELL AWAY FROM HIM!

if there was a driving post, all there is posted is a photo.

Anonymous said...

Nate you realize he could sue you for malpractice if you treat him in some states. What is your scope of practice without those standing ER orders? You might use a car cig lighter to cartarize your own wound but it would sound like torture on others. EMTs do not have to enter a bad area before cops control the situation. In CA which does not have a good sam law, most healthcare workers wouldn't stop at a car accident. Would you really want to touch him without protective gloves on? Treat this as a woman that keeps saying her husband didn't hit her and just make sure your documentation is in order for later.

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