In Self Defense – Episode 90: Post Incident Actions Part 2 – Initiating an Emergency Response and Preparing for Responding Officers

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In Self Defense – Episode 90: Post Incident Actions Part 2 – Initiating an Emergency Response and Preparing for Responding Officers

Don West and Shawn Vincent explore points three and four on CCW Safe’s list of 10 things to do after a self-defense incident: initiating an emergency response and preparing for responding officers.

 

Hey, everybody, it’s Shawn Vincent. Thanks for listening to the podcast. Today we’re going to take a break from our normal exploration of high-profile self-defense cases to look at the CCW Safe list of the top 10 things to do in the wake of a self-defense shooting. Don West and I, Don West is National Trial Counsel for CCW Safe and a veteran criminal defense attorney. He and I have started our exploration of this list in the past episode, if you haven’t heard that one, I recommend you go back into the archives and find it. Our first episode on this top 10 list was covering points one and two. Point one is to make sure you are safe in the immediate aftermath of a self-defense shooting. And two, very important, is to be the first to call 911.

Shawn Vincent:

Today we’re going to look at steps three and four. Step three is to initiate the emergency response, and that’s more than just calling 911 and reporting the shooting, that’s also asking for medical assistance for anyone who needs it, that could be yourself if you were attacked and suffered violence at the hands of another, and it could almost, ironically, include the attacker, the person that you’ve just shot, who moments ago made you fear for your life. Now, if they are neutralized and injured, but not dead, you’re going to want to get help for them as well. We’ll talk about that. And point number four is: prepare for responding officers. This is important because you’ve just been involved in a shooting. You are armed and now police are on their way to respond to a shooting and a potential homicide. It’s very important that you have your weapon secured and perhaps not even on your body, if it’s safe to do so, and that you receive the police from the perspective of someone who has just really potentially committed a homicide.

Shawn Vincent:

And that’s an important note there, even a justified self-defense shooting that results in a fatality is a homicide legally by the law. And so that’s an important mindset for a concealed carrier or an armed defender to have, is that when police respond to a self-defense shooting, and if you’re the shooter, when you declare that the shooting was in self-defense, you’re essentially admitting that you committed a homicide, you’re saying that it was justified, but you have to be in the mindset that when these officers respond, they’re investigating a homicide and you by admission are now the chief and only suspect in that homicide. We’ve encountered a lot of armed defenders that make an effort to talk their way out of being detained, or going to jail in the wake of a self-defense shooting. That’s almost always a mistake because they end up saying something that refutes maybe some physical evidence that causes their defense team a challenge later on in their legal defense.

Shawn Vincent:

And so it’s important for concealed carriers and armed defenders to have the mindset that they’re being investigated for a homicide, and be prepared to be detained, or to even be arrested in the wake of a self-defense shooting. That’s not the time to mount your legal defense. You want to have a lawyer on your side. You want to have a strategic plan, and you may just have to subject yourself to a little indignity for a couple of days in the wake of a shooting for the benefit of a coordinated, strategic, legal response. That’s what CCW Safe is all about, and that’s what this top 10 list of things to do after a self-defense shooting is designed to do, is to give you the best chance to survive the second fight, the first fight being the fight for your life, and the second fight being the legal fight to show that you were justified in your use of deadly force. So again, thanks for listening. This is my conversation with Don West about points three and four on the top 10 list of things to do in the wake of a self-defense shooting.

Shawn Vincent:

Well, let’s transition into number three on the list here, which is “initiate an emergency response,” because, in everything but a defensive display here, or a wild shot that hurt no one, but ended the circumstance, somebody is critically injured, or dying, or dead. And if you were attacked by an aggressor, you can yourself be injured. And after you’re sure you’re safe and you’ve reported that this incident happened, now a concern for anybody’s health, including the life of the person that you’ve just shot perhaps, becomes an important consideration. And I have to think about the Amber Guyger case when we talk about this.

Shawn Vincent:

Amber Guyger was the off-duty Dallas police officer who lived in one of those apartments where every floor looks the same and there’s a parking garage that every floor looks the same. And after a double shift, she came home tired, thought her door was unlocked, thought there was an intruder in her apartment, she goes in, there’s somebody there, he doesn’t respond to her voice commands, she fires and then discovers to her horror moments later that she was on the wrong floor. She killed her downstairs … or had shot her downstairs neighbor. And we’ve heard her body … or her 911 call where she’s got him in his arms, and she’s desperately trying to get medical help to him as fast as possible. And I am convinced that she sincerely, her whole focus was on hoping that this guy wouldn’t die in her arms. Her concern for his life was palpable to me. And I think she was convicted, but her sentence was a fraction of what it could be.

Shawn Vincent:

And I have to think that that genuine concern she had for the life of the person that she had shot, and she thought legitimately in self-defense in her mind when she did it, had some bearing on the judge’s sentencing.

Don West:

Interesting that you mention that because you’re right, she was convicted. It was a very hard-fought battle. There were lots of interesting legal issues about mistakes and reasonableness. I remember watching a lot of that trial, even attended a little of it, and realized how many times both sides, meaning the defense and the prosecution, used the word reasonable, or reasonable activity, reasonable judgment, reasonable decision-making, as they explained the events that led up to this tragedy. And, of course, ultimately the prosecution asked the jury to determine that a lot of what she did was unreasonable. And therefore, because it was unreasonable that she was guilty of a criminal act, even though it was unintentional and it was under the circumstances as you described. But I have to think that what you’ve talked about in terms of how it struck you anyway, is her compassion and her concern may have mitigated some of the sentence, it would not have necessarily prevented her from being convicted, and didn’t, so long as the jury was convinced that under the totality of those circumstances, that she acted unreasonably.

Don West:

What is an interesting anomaly in this particular case, the Amber Guyger case, is that in Texas, the jury also imposes the sentence … at least recommends a sentence that the judge ultimately imposes. So she was convicted of murder, but then after the sentencing presentation, they recommended a far lesser sentence than one you might get typically in murder, in fact, a sentence more commensurate with manslaughter actually. It was a fascinating experience, fascinating to see how all of that played out and how what we talk about in these podcasts, what you read about in the print material and the training material, how all of it comes together to be a case that has 50 lessons.

Shawn Vincent:

They just keep pouring out. Yeah. I was thinking, we talked about the Zach Peters case, and he shot the three intruders who broke into his home through a sliding glass window during the middle of the day, he encountered them. He had his father’s AR-15, shot each of them, and saw some of them hit the floor in the kitchen, retreated to his room, locked himself in and called 911. At a point during the call it’s clear that somebody is calling out in the kitchen, he hasn’t killed all of them and I’m going to not get what he said exactly right, but you can tell there’s that indication there that there’s someone alive and you need to get here quick.

Shawn Vincent:

And I think if you’re an investigator, that case never went to a jury obviously, they cleared that one justifiable self-defense. But if you’re an investigator looking on that, you can tell that compared to Jerome Ersland, or Byron Smith who go in and shoot them while they’re down, he had some concern for the people that he had shot. He wasn’t hoping that they were dead. His voice implied, “Get here quick if we’re going to save their lives.”

Don West:

I can’t tell you the name of the case, because I just heard it on a newscast a while back. And what impressed me about it so much was it was the prosecutor talking about the case that they had investigated, the same claim of self-defense, it was a fatality. And in the decision not to pursue the charges, and I can’t remember if they were charged and then dismissed, or maybe it was during that window when the prosecutor evaluates the case and makes the decision, what, if anything, to charge, and the decision in that case was not to charge. Among those things that he said to justify his decision not to file charges was the fact that the criminal defendant, the defender, had attempted to render aid right after the shooting.

Don West:

So that struck the prosecutor, and that’s pretty impressive to me, if that’s something that means so much to the prosecutor, that he includes it in his press conference as a reason contributing to why charges weren’t filed, that becomes pretty powerful stuff, because it makes you think about the other side of that. What if the attitude had been cavalier and there had been no attempt to mitigate the physical harm, or to provide some sort of life-saving. After all, how hard would it be? I don’t know, because I’ve never been in that situation about how would it be to then attempt to save the life of the person who just moments ago was trying to take yours?

Shawn Vincent:

And something you said there, too, when a prosecutor makes a public statement about not filing charges and then explains why, prosecutors are elected officials, so they have a constituency to perform for, for lack of a better word. And I think we have to remember that prosecutors are also advocates for victims of crime, and they’re going to be dealing with the family of the person that a defender shot. And they have to convince themselves, the family and the public, especially if it’s a case that’s gotten any media attention, why they’re not going to charge, or even just let a jury decide.

Shawn Vincent:

And I think if you can show a family that the person who was the defender had that care, you’ve just made it so much easier for the prosecutor to explain why they’re not going to charge you. Anything that you can do to give the prosecutor ammunition to not charge you and to explain it to their constituents is good for you. And even expressing concern about the life of the person that you’ve just shot, and even going so far as attempting to render aid, is a huge counterbalance for that.

Don West:

It may be the last thing you want to do, having survived the attack on your life, but we’re not talking about that, we’re talking about among these things you can do the, our list of 10, that put you in a better position to receive favorable treatment from the authorities. And while it’s a nice thing to save a life, and a good compassionate thing to render aid, it also has that added benefit that it may very well be powerful evidence to the prosecutor when, perhaps in a close case, trying to decide whether to charge you with murder, whether to disrupt the next two years of your life in court. And then depending on the outcome of the trial, perhaps the next 50 years of it.

Don West:

So it’s a high stakes stuff, and this is a win-win, it’s good that you may be able to contribute to saving a person’s life, even one that in your mind doesn’t deserve the effort that you are making since what they’re trying to do to you, but also it may very well have a secondary benefit, and an additional benefit: Frankly it makes you look good. And there’s nothing wrong with that.

Shawn Vincent:

Here in the notes that we got from CCW Safe on this point, “initiate emergency response,” they speak a little bit to something you mentioned in our conversation about point number two, be the first to call 911, which is, this is your first opportunity to establish that this is a self-defense case. They say here, tell the 911 operators something similar to, “I am the victim,” or “I had to use my weapon in self-defense,” or “I was forced to defend myself,” — you’re making the claim of self-defense here if you are the one who makes the 911 phone call, and you want to set the framework for how the responders are going to look at this case.

Don West:

Yeah, I’m going to nitpick there, just because you just said …

Shawn Vincent:

Yeah, because I’m the victim. Go ahead.

Don West:

… I am the victim. I don’t like I am the victim. You may very well be technically a victim because you were attacked, so you are the victim of the attack. The reason I don’t like that phrase is because of the pejorative context it has in the media sometimes …

Shawn Vincent:

It’s a loaded word.

Don West:

… everyone claims to be the victim. Yeah. So you don’t need to say that word, you can communicate just as effectively by saying, I was attacked. He attacked me. He tried to kill me. I had to defend myself.

Shawn Vincent:

Yeah. And we want to be real careful about what we say here, because as we talked before, it’s being recorded and anything you say can be used against you potentially. I guess what I feel here is I’ve heard some people think that there are some magic words you can say, like “I was attacked” and “I was in fear for my life,” and that somehow elves come out, the self-defense elves come out and cast a spell on that, that seals your fate as, oh yeah, clearly you’ve said the magic words, it was self-defense, and that’s not the case. And I think about the Michael Drejka case, he was the parking lot shooter, got in a fight with Markeis McGlockton, Markeis McGlockton pushed him to the ground, he fired one shot when the guy was lording above him, afraid that he might get beat him up further. And he used very police-like terms in his interrogation describing what happened to him.

Shawn Vincent:

And I think the lesson there is that, it almost felt like he was too wrote in his responses. And so, yeah, I am the victim, or I had to use my weapon in self-defense, I think in the self-defense forums, or in the Second Amendment conversation, there’s these terms that get flown around, but what’s really important is that your claim is genuine and makes sense in the context of what happened. And you just need to use your own words to describe what happened. But if you were threatened with force to the point where you felt that you were going to suffer permanent physical injury, or death, you can articulate that you were attacked and that you fired your weapon in self-defense, or something like that, but it needs to be, don’t get hung up on some pre-prescribed concocted words here. It needs to be an authentic plea of self-defense.

Don West:

Of course, especially if it sounds like … you said the word “wrote,” or rehearsed, or read from the back of a card as if it’s these magic words that all of a sudden the police will say, well, I’m so sorry. I don’t mean to inconvenience you. Thank you. Thank you for letting me know that.

Shawn Vincent:

Right. Congratulations, you cracked the code. Yeah.

Don West:

Yeah. It’s important to make a statement, to make it clear that you were attacked and that you defended yourself, and you don’t really have to say much more than that for the police to get the idea that’s what happened in your mind that will shift away because, of course, self-defense is a claim that has to be raised by the defense in some way. So if nothing else, you put the police on notice, it may not change anything that they do that night, including arresting you and taking you to jail and booking you for murder. But getting it out there that you were responding to an attack when you used force, that you weren’t out there committing the crime without any legal basis for using that weapon, I think gets it out there. It gives the police some insight, maybe some things to look for that they wouldn’t otherwise look for, maybe a way to question witnesses that they might not have otherwise directed their attention to.

Don West:

And it allows you to stake that out early on, but, of course, keep in mind that once you do that, as soon as you say I was attacked, I am the victim, I acted in self-defense, you have just now admitted about 90% of the crime of murder. So you said, you’re the one that did it, you’re the one that pulled the trigger, there’s no mistake of who was involved, and that you did it on purpose. There’s no accident here. There’s no, oh, the gun went off accidentally, which what reminds us of the fellow in Detroit?

Shawn Vincent:

Ted Wafer. Yeah. And his, well, not the 911 call, but …

Don West:

… yeah. Ted Wafer.

Shawn Vincent:

… but told police that it was an accident, and there’s no such thing as accidental self-defense, it has to be on purpose.

Don West:

So once you stake that out with the police, that’s your defense. And now on the plus side, from a legal perspective, the prosecution ultimately, at trial, and certainly the way the case would be investigated as there are charging decisions made and case evaluations made, the prosecutor has to prove it wasn’t self-defense. So once you raise self-defense officially in trial by having some evidence introduced, whether it comes through cross-examination, or even in the prosecutor’s own case, or ultimately what happens a lot of times is the defendant has to testify to get that evidence in the record of self-defense, but once that happens, then the prosecutor must prove it wasn’t self-defense, and that’s not always easy to do. So it’s a very solid, favorable defense of the facts justified.

Shawn Vincent:

The defender doesn’t have to prove that it was self-defense. The prosecutor has to prove beyond a reasonable doubt that it wasn’t. So they have a high burden and that’s the benefit when you make that claim from the beginning.

Don West:

If you don’t get it out there, in fact, there are lots and lots of cases where I’ve read them in the appellate courts, and some that I’ve watched in the news, where there was no clear evidence in the record of self-defense and the judge denied the defense lawyer the opportunity even to argue it. And without there being a jury instruction and being allowed to argue it, the jury isn’t allowed even to render a decision on that, they can’t decide whether it was self-defense because those hoops weren’t jumped through at the beginning.

Shawn Vincent:

Well, to get to talk through about all 10 of these, Don, I think would take us maybe two, three hours, but I think, too, what would make a nice round conversation for what we’re talking about today is to step into number four here on the CCW list, which is “prepare for responding officers.” And I want to start this conversation from where we were just standing where we’ve basically told 911, and therefore we’ve told the authorities that we have committed a homicide essentially, right? Of if they die, then it’s homicide, and if not, then it’s a, criminally it would be an assault with a deadly weapon if they happen to survive. So we’ve committed a very serious felony unless our claim’s correct. And we’re saying that we’ve done it. And so now we’re going to have an encounter with law enforcement. We are armed and we have just shot somebody, that can be a complicated interaction, right?

Don West:

Oh, for sure. Yes.

Shawn Vincent:

And we’ve known from, I want to go back to the Zach Peters case because that’s one of our great examples of someone who did practically everything right by the book and with a true defender’s heart. And so he realizes, he’s talking to authorities, he’s in a room with a very powerful weapon, he’s got an AR-15, and the responding officers once they figure out what’s going on with these alleged intruders, now they want to make sure that they’re safe and interacting with a young guy who’s got a powerful rifle. And so the dispatchers gave him some indication on, if it’s secure, take the magazine out and put the weapon on the bed, and you’re going to come out and present yourself to the officers in a very specific way. Often it’s, even you’re going to put your phone down now, we don’t want them to see you with a phone in your hand, even if you’re not necessarily considered a threat, they want to know that they can see your hands.

Shawn Vincent:

You had mentioned on a couple of occasions earlier that when it comes to being safe and neutralizing a threat that may include having a gun pointed at a potential threat to keep them, not a threat, but if police show up and they see there was an altercation and somebody’s got a gun out that you’re in a terrible place at that point. Right? So preparing for responding officers means letting them know that you’ve got things under control, that your weapon is not in play, and that you’re ready to follow their instructions when there’s this handoff between 911 and actual officers on the scene.

Don West:

Yeah. And that could be a little tricky, because there’s a lot of adrenaline flowing right then, there’s a lot of confusion. The police don’t know what they’re rolling up to. They have limited information and they probably don’t have the 911 call itself, they may have some access to it, but it’s typically even ongoing. I know the protocol typically is to keep the person on the phone until there’s actual police response, but, of course, if you have that situation where there’s someone injured on the ground and you’re holding them at gunpoint, that really complicates things. The police, first and foremost, want to be safe. And then they want to be sure that everybody else is safe. And the more information they can have rolling into this, the higher their comfort level will be that when they recognize certain things, they’ll know that it’s consistent with what they’ve been told, and therefore they’ll feel a lot safer about it.

Don West:

And I suppose when you’ve told the 911 dispatcher, or that you’ve had someone make it clear, if they’re on the phone instead, that you’re there, this is what you’re wearing, you were the victim of an attack. The attacker is injured, but still on the scene, and that you are holding the person at gunpoint until such time as there’s arrival and there’s no mistake about who you are, what you look like, what you’re wearing, a good description of the situation. Now, that’s going to be a bit unusual. We haven’t seen that very often in the work that we do with CCW Safe, but we have to consider that possibility. Typically, what happens, though, is there’s someone on the ground that’s been shot, or you’re the only person there because the attacker ran off.

Shawn Vincent:

Well, and if you’re not the one making the call, if a third party made the call because you’re still engaged in this, then the policemen who show up, all they know is that there’s been shots fired and they’re going to see a victim, and then somebody else may have a gun. You want to clear away all that ambiguity and make sure you’re not the one who gets shot by cops in the aftermath of this. But I think about in the Michael Dunn case, Michael Dunn didn’t call 911, he didn’t know for hours that he had even killed somebody. When they caught up with him, they called him and they told him that they’re outside of the house that he was in, and that what he was to do was to hang up the phone and take off his shirt and come out of the house with his hands in the air. And then when he sees the officers, put his hands behind his head and turn around and get on his knees. And he did those things. There’s an art to being arrested. Isn’t there?

Don West:

Well, when you look at the notion that the police want to be safe themselves, they want other people to be safe, they don’t want any surprises. So obviously they don’t need an argument, all they need is compliance. And if the instructions are clear and you are fully compliant, even if you don’t like it, even if you see no reason why they would treat you like this, the bottom line is compliance makes everybody safer. Nobody gets jittery. There are no quick movements. There’s no arguing. There’s no yelling that I’m the guy he tried to kill nonsense. Why are you treating me like this? I’ll have your badges. I don’t deserve this. I’m the victim here. I’m the victim here.

Don West:

You start going through that stuff, and you’re going to make everybody nervous, and you’re certainly going to set the stage for all of that subjective stuff that when they evaluate your demeanor and your attitude and the likelihood that you acted truly in self-defense, because keep in mind that once you’ve admitted that you were the person that shot and killed this person, it’s pretty limited what’s left. It really only has to do with what was going on in your mind at the time you pulled the trigger and were the circumstances, the facts surrounding that moment in time, sufficient to justify your decision to pull the trigger.

Shawn Vincent:

Sure. And when the police show up at first, they don’t have the surrounding circumstances yet. So maybe a great place to start wrapping up this portion of our conversation on these 10 things to do after a shooting incident, gets us back where we started, Don, and when it comes to preparing for responding officers understand that you, by making your self-defense claim, are in fact the prime suspect in a homicide investigation, and you’re going to be treated like that to some degree. It may not be entirely dignified. You may find yourself in the back of a squad car with handcuffs on. You may find yourself looking at a potential interrogation, right? And we’re going to get to some of those things on how to interact with these law enforcement officers once they’ve shown up and start asking you questions in our next conversation.

Shawn Vincent:

But I feel like I’ve seen a lot of really good people cause us really a lot of trouble in their criminal defense by saying things that they think will get them out of being arrested tonight, that risk them going to jail for a significant portion of the rest of their lives. And what I want CCW Safe members, concealed carriers, armed defenders to consider is, if you’ve killed somebody in self-defense, no matter how justified you believe you are, be prepared mentally that you’re going to jail tonight, and it might be a couple of days before you get to even talk about bond or being released. You’ve done something, a life has been taken, and now there are a series of legal ramifications that are going to unfold, whether or not you’re ultimately determined to be justified, because you even said in the preamble to this conversation that a prosecution can take 18 months, two years before you get to a jury, and in some of the most clear-cut cases of self-defense that we’ve seen, those investigations, even with the defender not in jail, can last four or five weeks easy.

Don West:

Oh, certainly. Yeah. And that’s when everything looks good and they just have to dot the I’s and cross the T’s before making that announcement that no charges have been filed.

Shawn Vincent:

That’s right. So if you’ve shot somebody, you’re not going to work tomorrow, and you’re not going to get a good night’s sleep, and there’s not going to be a scenario where they pop some champagne for you and congratulate you on getting the bad guy. You need to really get in the mindset of you are the chief suspect in a homicide.

Don West:

That should be the expectation. There may be exceptions, and there may be people that aren’t actually arrested.

Shawn Vincent:

No, that happens all the time, you’re right about that.

Don West:

… yeah, the expectation is though you should go, and because it should be the expectation that you’ll be arrested and that you’ll go to jail, don’t be surprised when it happens, even if you believe in your mind you were completely justified, even if you’re convinced the evidence will show that you were completely justified, even if you feel put upon and inconvenienced and scared, expect that to happen. If it doesn’t, good for you, but when it does, don’t be the kind of person that proves that you’re the jerk that the prosecutor wants you to be, because if they’re looking to what tips the scale, if you’re cursing and yelling and saying, I’m the victim here, and I didn’t do anything wrong, and how are you treating me, why are you treating me like this? There may be other evidence to corroborate that kind of attitude, whether it’s on social media, or have you, all of a sudden the prosecutor’s argument is tailor-made, he didn’t shoot him because he was scared, he shot him because he was angry, or because he was, fill in the blank.

Don West:

If it’s any other reason, other than he had a reasonable fear of an imminent threat, or an imminent attack on his life, imminently — right now — that he was afraid his life was going to be taken. If it’s anything other than a reasonable belief, reasonable fear, self-defense falls apart.

Shawn Vincent:

Yeah. And if you try to talk your way out of being arrested that night, I can almost guarantee you, you’re going to say something that’s going to cause your defense attorney a massive headache and perhaps ulcers as he tries to keep you out of jail for the best part of the rest of your life.

Don West:

Well, another time we can talk about that, the defense lawyer’s nightmare often is the imprudent statements, the off-the-cuff statements, the emotional statements that were made about this.

Shawn Vincent:

All right, guys, that’s the podcast for today. I appreciate you listening through to the end. In the not too distant future, Don West and I, we’ll take a break again from our normally scheduled programming to bring you points five and six on the top 10 list of things to do after a self-defense shooting. Until then be smart, stay safe, take care.