In Self Defense – Episode 89: Post Incident Actions Part 1: Get Safe and Call 911

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In Self Defense – Episode 89: Post Incident Actions Part 1: Get Safe and Call 911

Don West and Shawn Vincent explore CCW Safe’s list of 10 things to do after a self-defense shooting, drawing upon real-life incidents to show how a defender’s behavior in the moments, minutes, and hours following a self-defense shooting can impact the criminal investigation and potential prosecution.

 

Transcript:

Shawn Vincent:

Hey, everybody. It’s Shawn Vincent. Thanks for listening in to the podcast. Today, we’re going to do something a little bit different. Usually, Don West and I are joined by our friend, Steve Moses, to explore high-profile self-defense cases and talk about the lessons learned for concealed carriers. But this podcast is designed to help give concealed carriers and armed defenders an idea of what elements, what facts, things that unfold during a real-life self-defense incident. How that plays out in the legal defense of that armed defender after the fact, right? So we’re looking for lessons learned so that you guys, as concealed carriers or armed defenders, can have a perspective of how your actions will be perceived after a life or death self-defense incident.

Shawn Vincent:

And one thing that we don’t necessarily always talk a lot about on this podcast is how your behavior and your interaction with law enforcement in the moments, minutes, hours, and days after a self-defense incident can impact how the police investigation proceeds and how ultimately a criminal defense can be mounted should you face prosecution for your use of deadly force. So in that vein, we get a lot of questions about how should one act after a self-defense scenario, and CCWSafe put together a list of 10 things to do in the wake of a self-defense shooting. Over the next couple of months, interspersed with our normal podcasts, we’re going to, Don West and I, are going to explore these a couple of elements of a time.

Shawn Vincent:

Today, we’re going to talk about points one and two. Point one is to make sure that everyone is safe immediately following a self-defense incident. Point two is to be the first to call 911. And in the course of our conversation, we’re going to reference a number of the high-profile cases that we’ve explored in-depth on this podcast. One of them is the Gyrell Lee case. I mistakenly refer to the attacker in that case as Michael Epps. The man’s name is Quintin Epps. So my apologies to Michael Epps who is a stand-up comedian and actor. If anyone’s a fan of the 1990s cult film “Friday,” you know Michael Epps as the guy you were disappointed to see in the sequel instead of Chris Tucker. So anyway, thanks for accommodating that slip of the tongue. But here is my conversation with Don West about what to do in the wake of the self-defense shooting.

Shawn Vincent:

If you’ve shot somebody in self-defense, you’ve committed a homicide and the police are going to come and investigate that, and either it’s going to be charged as a crime or it’s not. And they don’t always tell you that they’re not going to charge you.

Don West:

Well, you can almost expect to be arrested, detained at a minimum, perhaps arrested, taken to jail and booked regardless of what the outcome may be, which could be weeks. If charges are actually not filed or filed. Months, depending on the jurisdiction, how long it takes for these cases to get to court. But it’s not unusual for it to be years. A year-and-a-half or so is not at all unusual between the incident and when a jury trial might actually take place for the jury to decide whether you acted in lawful self-defense. What’s really interesting to me is they try to sort of parse this out in these various steps before and after. We know that the before stuff that we talk about, how you present yourself on social media, things you may have said that give the prosecutors some glimpse into who they think you are becomes just as critically important in the moments following the shooting.

Don West:

And all of it becomes with an eye toward trying to figure out what were you facing at that moment, and what were you thinking at that moment and whether or not the circumstances of that moment allowed you to use deadly force in defense of yourself. Unless you make a statement where you say specifically this is what I was thinking, this is what I did, and this is why I did it. Almost all murder-type cases, criminal homicide type cases, require the police initially, the prosecutor, and ultimately the jury to figure out what was going on inside your head. And that’s often through circumstantial evidence because unless you say it, which would be direct evidence, circumstantial evidence are those fragments of information that when assembled create this sort of linked chain that makes it clear what was going on at the moment. So that’s why prosecutors will look back to see what kind of person is this, what have they said in the past that gives them some indication of what their mindset may have been going into something like this.

Don West:

And then depending on how you interact with the police, how you interact following the incident with social media, family, friends, even to the point of what the bumper stickers you may have on your car or your attitudes simply, how are you expressing your own emotions in the immediate aftermath of the incident. How does all that fit together to give the prosecutor some clues, some insight into what was happening at the moment that the trigger was pulled? It’s fascinating, it’s complicated. And I think, fortunately, someone that thinks this stuff through in advance will be able to appreciate how some of these things can become critically important and may also be misleading. And the last thing you want to do is create a trail of information or create a context that’s misleading about what you were thinking and doing. Certainly, if it’s misleading, to your detriment.

Shawn Vincent:

Right. So if anything that you say or do doesn’t quite fit what the investigators see the facts to be, then they’re going to suspect foul play.

Don West:

Especially if it comes down to the basics of them trying to figure out what was going on. And you’ve made statements, especially if you’ve made statements early on before you’ve had an opportunity maybe even to fully process what just happened. And then the information that you provide turns out to be inconsistent with physical evidence or forensic evidence: that becomes a big problem for your lawyer to sort out if you’ve said something that is contradicted by physical evidence. It’s very hard to challenge physical evidence if it’s within that realm of physical evidence that’s well-accepted historically by the courts and something that’s forensically been proven and sound. So, yeah, you can quickly misstep if you’re not very conscious of how this stuff plays out and how significant the moments after the incident will become.

Shawn Vincent:

Sure. And I think a lot of the CCWSafe members, a lot of concealed carriers have a sense that those moments and hours after a shooting are very important. And we get a lot of questions about that. And because of that are our friends of CCWSafe, our colleagues there, have sent us this list of 10 things to do after a self-defense incident. And I think this list is a good set of guidelines that open up a good conversation about what to do in the wake of a shooting. I don’t think they’re necessarily comprehensive or meant to be even a step-by-step guide, but these are things that I think any concealed carrier or armed defender should think about and have an idea of how they’ll handle these things in the wake of a shooting. And I thought it’d be good to kind of talk through these points one through 10. You’re game for that, Don?

Don West:

I am. Absolutely. I’ve seen the list you’re talking about. I think that it’s very well put together, but as you say, it’s not as comprehensive as maybe it will be after we talk about it a little bit, because each one of these issues or elements is worthy of a fairly detailed conversation in and of themselves. But I do think that each identifies an area that’s critically important. Issues that may very well become what makes or breaks a given self-defense case.

Shawn Vincent:

Well, here’s the first one. Number one on the list is: make sure that you are safe, right? So if you’ve just shot somebody in self-defense, you want to know that the threat is in fact over for you and for your family or for anyone else around. And I mean, you want to make sure that there’s nobody else besides this person that poses a threat to you. And if you’re not in a safe place, you want to get in a safe place before you can do anything else at all. Is that your read on tip number one?

Don West:

Yeah. Including the fact that although you may have shot someone and they may appear to be seriously injured or even not moving much, there’s certainly no guarantee that they aren’t in their own strategic way trying to lull you into a moment where they can then surprise you and spring on you or either to getaway or to do you harm. They may have another weapon in their pocket that they’re able to get to. So I think the point is to be absolutely sure that the person that attacked you from what you had to defend yourself is truly neutralized so that you aren’t inadvertently putting yourself and your family in a great risk.

Don West:

Now, of course, what does that mean? It means that they don’t have access to another weapon. It may mean that you can see their hands. You may very well, if they are injured but not incapacitated, give them some direct orders at gunpoint. Make sure they put their body in a certain position where you can see their hands and that they can’t access other weapons and hold them in that, what would otherwise be a safe position until the police get there.

Don West:

I think this comment also extends to that there may be other people there. If it was a crime being committed with an accomplice, there may be accomplices there that could sneak up and attack you once they realize that their cohort has been injured or shot. And maybe just the circumstances of the situation, the locale might be uncomfortable and it might actually be dangerous. And while we would rarely, rarely suggest that you leave a scene, there could be that moment where you need to get away a little way, any way, to be sure that you are safe as you decide what to do next, which of course typically means you call the police. So think about that stuff.

Don West:

And if you should wind up in a situation where you have shot somebody and incapacitated them, seriously injured them, that doesn’t mean that it’s 100% over. There’s one thing that you absolutely don’t do and that’s the one thing that we both have seen in cases where someone has shot, Justifiably has shot someone who has attacked them may very well have been attacked with a gun or a knife. They were truly in that life-threatening imminent moment when they had to use deadly force to save themselves. The person is incapacitated. The threat is neutralized. There’s no articulable basis to claim that this person continues to be a threat. And they do what is absolutely fatal to a self-defense case. They go over out of fear, out of anger, and perhaps the misguided belief that they can legally do this. And they shoot him again. They do that coup de gras kind of shot. We talked about a case in Oklahoma City, didn’t we?

Shawn Vincent:

So no double taps. That might be okay in Zombieland, in the zombie apocalypse the second rule might be “double tap,” but in reality and in civilized America — in self-defense land, if the person’s down, they’re down. Don’t shoot them again to neutralize the threat, make sure they’re neutralized. At this point, you want to see their hands. You want to know another weapon is secure and away from them. And then if it’s not, then you are at a point where you may want to get away. You were talking about those scenarios and it made me think of a couple of cases. We talked about… You just mentioned Jerome Ersland who shot an armed robber who came into his pharmacy. And that kid hit the ground. He got hit in the head, but not fatally. And then was incapacitated on the ground. He chased the other robber out, came back in and then fired fatal shots into him.

Shawn Vincent:

We talked about just recently the Byron Smith case where after he had disabled the people who had broken into his home forcibly, he basically executed them. And then there was the Gyrell Lee case. And this has a couple of those elements that you talked about, Don, where Gyrell Lee, his cousin got into a fight with another guy. That guy pulled out a gun, ended up shooting his cousin. Gyrell Lee then shot that guy. There are other people around, nobody died immediately of the gunshots, but the guy Gyrell Lee shot his name was Quinton Epps. He hits the ground. Gyrell Lee shoots him while he’s on the ground. Doesn’t kill him immediately. But then everybody runs because there’d just been a gunfight essentially. Right? And so now you’ve got a situation. And we know from our study of that case that one of the things that the jury considered deeply was the fact that the prosecutor made a point that there was an imprint of a bullet underneath Epps’s body meaning that Gyrell Lee shot him while he was on the ground.

Shawn Vincent:

And so there’s an instance where you have a shot too many. And then Gyrell Lee, I think we can forgive him for leaving the scene where there was just a gunfight and his cousin was shot — and turned out to be fatal, when he was found dead behind the house nearby — that he went to safety. But then he made this mistake of not doing step number two, which was calling 911.

Don West:

Let me loop back to one other comment on this about the threat being neutralized and being sure that you don’t use excessive force after that moment that you basically don’t shoot someone who’s unarmed and capacitated. Someone who is no longer an immediate threat, even if just moments ago, seconds ago, the person was fully able, willing and intended to take your life. Once they are no longer that threat, of course, you can’t use deadly force against them. And we talked about the attacker that was injured and on the ground, or otherwise not immediately a threat. But the same rule would apply if you are in a situation and are threatened with lethal force yourself and you display and use lethal force against them, but in a non-fatal way and as a result of your use of force, they take off and run that they decide they don’t want any part of this.

Don West:

They’ve changed their mind now. So all of a sudden, a guy that was holding a gun on you, demanding your wallet, may even have fired the gun. My example here is in the context of the aggravated felony notion of there’s lots of ways and lots of places where you can use deadly force to prevent certain crimes being committed against you, separate and apart from the use or threatened use of deadly force against you.

Don West:

But the context often takes place in a robbery situation. Somebody displays a weapon, they intend to rob you, they’re trying to rob you and you would have the right legally to use deadly force. But all of a sudden they hightail it and run, or even have after you shoot them. Or if it’s not a non-fatal shot, they leave and they’re on their way. You cannot shoot someone in that situation because they don’t have to be laying on the ground not to be a threat to you at that moment. If it’s clear that they are not a threat, if it’s clear they’re trying to get away and do not pose a threat to you. Now, obviously you’d have to evaluate that moment exactly whether they were just getting some cover to attack you again, those kinds of things.

Don West:

But typically when someone is just trying to get away, they’re trying to get away. And the last thing you need is when law enforcement shows up and they see this guy lying on his belly with a shot in his back and says, well, why did you shoot him? And if your answer is “because he was going to get away,” you’re just as guilty of that crime as if you had done that when he was standing in front of you and was not posing a threat.

Shawn Vincent:

Yeah, we saw recently one of our firearms instructors, one of the experts that we talked to on the show, and they talked about how the point of self-defense is to break contact. So however you’ve done it, once you have broken contact, you need to get into a safe place. And I think about the Zach Peter’s case, right? He had in fact shot three people who had broken into his house in the middle of the day. And then once he saw that they weren’t the immediate threat to him, he locked himself in his room and called 911. And he had broken contact and he didn’t know if they were still alive or dead, but he had gotten himself out of there to a place where he felt more secure, a place that was defensible, and then did the next thing, which is to call 911. So maybe it’s a good time to talk more about that.

Don West:

Yeah. That’s on the list too, isn’t it? About calling 911.

Shawn Vincent:

Be the first to call 911. And we look at the Marissa Alexander case for this because Alexander was at home. Her estranged husband came over and confronted her over something, allegedly attacked her. She escaped, got her gun from the dashboard or from the glove compartment of her car, confronted him in the kitchen, fired what she described as a “warning shot” that missed him by several inches. And then he left the house. In her mind, she had solved the problem. He left. And she went about her business. What she didn’t know is that he called 911 who then had police respond to what they thought was basically an active shooter at that house. They had the place surrounded. They kept calling her cell phone and she didn’t answer because she didn’t want to.

Shawn Vincent:

Until finally her sister said, “Hey, girl, you got police surrounding the house. They think you’re an active shooter. You’ve got a problem.” And so there you went because she didn’t call 911 to report the discharge of the firearm. All of a sudden the whole police department seems to be out at her property looking at her as a lunatic with a gun. That’s the best example of what can go wrong if you’re not the first one to call 911. You go from being legitimately the victim to perhaps a lunatic aggressor.

Don West:

Well, let’s break that down a little bit of the different possible scenarios where you would need to call 911 and what the circumstance is. The first obvious one that we usually talk about when we’re describing a self-defense scenario is that that you are attacked in some capacity, you are threatened with an imminent use of deadly force, that you have the legal right to deploy deadly force in your defense. And you do, and you shoot and seriously injure or kill your attacker. So typically at that point you are somewhere, that person is there and they are gravely injured if not dead. And now essentially the smoke has cleared and you have to decide what to do.

Don West:

Obviously, it’s important to get the authorities. It’s important to report what happened to you to establish your role in these circumstances. There may or may not be witnesses to some part of this. The witnesses may or may not be reliable. And I think it’s critically important is do those others that describe those moments after the shooting to establish your role to clearly identify yourself to the police as the person that was attacked, as the person that was required to use deadly force to protect yourself and ultimately to be in a position to… Well, what would be the idea? That you’re the person they’re looking for when they get here so you’re not mistaken.

Shawn Vincent:

Sure. You frame the nature of the investigation. Let’s look at the Michael Dunn case, right? Michael Dunn, who shot Jordan Davis in what was known as the Loud Music trial, right? It was Thanksgiving weekend. Dunn was coming back from a wedding. He pulls into this gas station next to Jordan Davis. They’re playing super loud music. Dunn says, can you turn it down? Jordan Davis freaks out, started shouting threats, started shouting swear words, threatens Dunn’s life, allegedly. And then Dunn ends up feeling, according to him, afraid for his life, pulls out his gun, and shoots Davis.

Shawn Vincent:

The teenagers in the car pull off, Davis dies later and Dunn, he gets his girlfriend in the car and he leaves and goes back to his hotel. Never calls 911. Never realized until later on that he had even hit somebody or killed somebody. But when police caught up with him very later the next day, they had been up all night investigating a murder where the shooter fled the scene. And in Michael Dunn’s mind, he had defended himself. That was his case. That’s what he presented to a jury at trial. So the police were investigating a murder.

Don West:

That’s exactly right. By the time those several hours had passed, they had collected forensic evidence. They had already interviewed some witnesses there from the convenience store. They would have looked at the vehicle. They would have talked to the other people in the car. They would have, without any evidence to the contrary, have begun to form their theory of the case and looked at evidence that from their perspective would have been very consistent with what the kid said happened without any. . .

Shawn Vincent:

Whereas if he had stayed there on the scene and been the first to call 911, then when police arrived, explained to them that this kid was threatening him, that this kid presented something that he thought was the barrel of perhaps a shotgun, and was about to get out of his car to approach him, then the police would then have that as the framework, the paradigm for which they’re going to look for evidence that either supports that or refutes that. Instead of just assuming immediately that this is some sort of homicide — some sort of murder.

Don West:

They may very well have had access to the vehicle early on looking for something that was the weapon that Dunn claims to have seen or something where he may have thought, well, what he may have thought was the weapon and connected up some of his idea with what happened. What his statement was with actual physical evidence.

Shawn Vincent:

Sure. We talked about the Gyrell Lee case just a few minutes ago. He didn’t call 911 on that one. And when police finally picked him up, they wanted to charge him not just for the murder of Quinton Epps, but also for the murder of his own cousin, who we found out later, Epps had actually killed. So not only in that case, because he didn’t call 911, he was almost about to be pinned with the murder of his own cousin, who we know was at the hands of somebody else.

Don West:

You might consider this to be a bit of an extreme scenario, but we have those two cases, right? Where the charging decision may have been different. Certainly, the perspective and the perception of those doing the investigation may have been completely different had either of these fellows called the police and given an opportunity for the police to begin to investigate their version of what happened. If nothing else to claim that they acted in self-defense, they could point to a little bit of evidence and we’ll talk in more detail about how you interact with the police when they appear on the scene and some sort of limits to that kind of communication. We have to emphasize the importance of initiating that call.

Don West:

I do think though, Shawn, that depending on the situation, depending on who’s there, how it unfolded, whether there are still people on the scene that could be at risk, you have options. There’s no requirement that you be the person that calls 911. You could ask someone to call 911. In the Dunn case, his girlfriend was there with him. He could certainly have asked her to do that. In other cases, there was a situation where you might actually direct a bystander to call 911 and provide that person with enough information that the police know who they’re looking for and what briefly happened.

Don West:

There are some advantages to that. I think. It keeps you out of the direct loop where you’re trying to manage what’s happening at the scene and also talk to the police. Of course, a 911 call is recorded and it’s entirely-

Shawn Vincent:

And anything you say can and will be used against you.

Don West:

Yeah, and whether or not you’re of good sound presence of mind, and whether you get things exactly right. Or if you mix up some things, which is entirely possible, if not likely, yes. That’s recorded. And that will become a piece of evidence in the case. And of course, well, just that there might be an attacker there at the scene who’s being held by gunpoint. You may have to hold that person or you may be even trying to provide some limited medical services, frankly, if the person is injured and not a threat. So there’s lots of stuff going on. And just because you can’t, or you choose not to make that call yourself, it’s critically important that call gets made.

Shawn Vincent:

And in that later, it can be shown that it was you who initiated it because we see the ones that they don’t call 911, that’s like consciousness of guilt evidence in some cases, right? Where the prosecutors will say the fact that you weren’t the one that called meant that maybe you felt that you had done something wrong and that’s hard to overcome.

Don West:

Let’s go, right. Yeah. Let’s go back to what is self-defense. Self-defense, you mentioned earlier in this podcast that it’s essentially a homicide. A homicide is when someone is killed at the hands of another, it’s a criminal homicide meaning a crime, if someone is killed at the hands of another, who didn’t have the legal justification to do that. So if you eliminate self-defense as the reason why you did what you did and only look at what you did, you’ve just committed a crime. Any number of degrees of crime perhaps from manslaughter to second-degree, to even a premeditated murder, and you are facing potentially any or all of those charges, depending on how the event unfolded.

Don West:

Unless, and until you had a legal justification for what you did. And the only legal justification in the context of our conversation is that you were facing an imminent threat of great bodily harm or death, or that you were attempting to prevent the commission of an aggravated felony and you had to use deadly force to protect yourself and others. If that falls through, if any part of your self-defense claim falls through, then what you’re left with is the murder charges, some degree of criminal homicide. And if you don’t assert that early on, and you do like Michael Dunn did and you leave — then it looks to the police as an afterthought, it looks to the police like, well, he couldn’t come up with anything better. He didn’t stay at the scene and tell us what happened and how it happened to begin the process of the self-defense investigation. It’s almost like, well, he didn’t have anything else he could say. So he might as well call it self-defense. And that’s a terrible, terrible position to start from. As you well said.

Shawn Vincent:

Before we wrap up this conversation about being the first to call 911, there are also some of the cases that we’ve explored that turn out the best for the defender are cases where the defender called 911 before the shooting even happened. The defender had time to say, whether it’s Melinda Herman, someone’s broken into my house. And she actually called her husband, her husband called 911. And the thing goes down while the operator’s listening. I think we looked at the Gerald Strebendt case where he was on the phone with 911 when he fired the shots. And I think that’s one of the reasons why he didn’t see the full sentence that he could have been subjected to for shooting an unarmed motorist in the night with a rifle, right? We’ve seen Zach Peters. He called immediately after, but the event is still ongoing while he’s on the phone.

Shawn Vincent:

Our own Stephen Maddox had attempted to call 911 before his attacker approached him again for the third time. 911 actually called him back after the incident. And not all of these cases went perfectly, even the Zimmerman case that you and I worked on together. George had called 911, or he called the police, anyway, before the incident happened. And that puts a timeframe on things. It puts things in context. And, yeah, I’ve just found that when you’ve demonstrated the concern beforehand, that goes an awful long way.

Don West:

Yeah. The rule is you always call 911. You’re the first person to call 911. And there would be rare situations where that wouldn’t be the first and the best advice. There may be those moments, maybe those situations where it’s a harder decision to make. And the decision there becomes do I want to involve law enforcement because nothing really happened. No shots were fired. Nobody was injured. It was a moment and the person that assaulted you ran off. You have no idea who it is. It was a fleeting moment. And you have no reason to believe that they are going to call the police.

Shawn Vincent:

So sort of a defense display, you drew the weapon, you show the weapon and they ran off. Are you going to call 911 on this is the question.

Don West:

So that’s a calculated risk that you make. If you don’t call 911 and they do, that puts you right back in that situation that we talked about early on that now you’re on the defensive that someone has called and said, look, this idiot just pointed a gun at me. And you’re now the focus. On the other hand, if you’re convinced the person’s not going to call 911 and the circumstances were such that particularly you don’t want to invite law enforcement’s participation or involvement and it may be a little harder call, but the safe bet, of course, is report it.

Shawn Vincent:

And if there’s been a discharge, whether someone’s been hurt or not, it’s the right thing to call. Remember we looked at that case for that homeowner encountered a guy breaking into a shed. And when the guy saw him with a gun, ran off and he fired it into the darkness as the guy fled, not knowing that he shot him in the back of the head and the guy made it to the golf course behind the ramble behind his house and died. And he got arrested for that the next morning.

Don West:

Yeah. I don’t remember the fellow’s name. It was a Texas case, as I recall. And that was one of those cases where you start checking off the boxes of how many-

Shawn Vincent:

How many things did he do wrong, right?

Don West:

Yeah. And did enough wrong that he got charged ultimately. So for a guy trying to break into his own property or onto his property, but he did everything wrong, including waiting until the next day to call the police after he’d discharged his gun.

Shawn Vincent:

All right, guys. Thanks for listening through to the end. The big takeaway here is to be the first to call 911. In our next episode, we’re going to talk about steps three and four: initiate an emergency response and prepare for responding officers. Until then, be smart, stay safe, and take care.