In Self Defense – Episode 106: Post Incident Actions Pt.2
Steve Moses joins Don West and Shawn Vincent to discuss the things an armed defender should consider when dealing with law enforcement in the wake of a self-defense shooting.
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Hey everybody, this is Shawn Vincent. Thanks for listening in to the podcast. Today, we’re going to have part two of my recent conversation with Don west and Steve Moses. Don is National Trial Counsel for CCW Safe, a veteran criminal defense attorney, and Steve Moses is a CCW Safe contributor and a well-respected firearms instructor and self-defense instructor. We’ve been discussing this list of 10 things that armed defenders should consider in the wake of a self-defense shooting. It’s a list that was put together by the founders of CCW Safe and some of the experts that they’ve hired that are on the CCW Safe team.
And it covers everything from being the first to call 9-1-1, making sure that you’re safe, and making sure the people that you’re responsible for are safe. And then what’s key to our conversation today, how to interact with law enforcement officers once they arrive. You want to be cooperative with law enforcement. You want to make sure that you’re not a threat to law enforcement, but you also want to make sure that you don’t say too much without the advice of your attorney. And Don West refers to this in this podcast as “square dancing in a minefield.” It’s a delicate balance. We’re going to have some insights into how you can navigate that square dance in the minefield.
And we’re going to wrap up this conversation today, talking about the importance of forensic evidence. In the course of our conversation, we’re going to reference the Stephen Maddox case. Stephen Maddox is a CCW Safe member, and he was involved in a self-defense shooting. CCW Safe got him all the way through trial to an acquittal. Steve Maddox has allowed us … given us specific permission to talk about his case, because he wants you to benefit from the lessons that his case brings out. So, thanks for listening in today. Here is my conversation with Steve Moses and Don west on post-incident actions.
I want to talk now about getting ready for responders to come. So you’ve had this incident, someone’s been shot. You’re the shooter. You have the firearm. You’ve called 9-1-1. You’ve explained to them that you’re the victim that you were attacked and that you had to shoot in self-defense. Now, you’ve got police officers responding to the scene of a shooting. And I think this is something that most people don’t understand is sometimes how little information that the responding officers have when they’re going. We think we’ve … that the officers have not been told everything that you’ve said on this probably ongoing 9-1-1 call.
What they know is they’re responding to a shooting. And if they show up and you’re the guy with the gun still, you’ve put yourself in a very potentially life-threatening position. So, talk us through, Steve, a little bit about, from a law enforcement perspective, what the best thing you can do now to get yourself ready for armed police officers who are responding to a shooting to approach you.
Well, first thing I’m going to do is I’m going to do anything that reduces the perception that I might be the shooter. And so one of the best things that I can do is going to be is to go ahead and holster my handgun, if I feel like I … you know what, I may need to use it very quickly, I can holster it, keep my hand on it, or I can keep it in a low ready. I can keep it in that position Sul. I just kind of encourage concealed carriers to look up that term for a detailed explanation of what that is. But hold that in a manner that very much suggests that I am not the shooter as soon as they’re on the scene and I’m convinced that it is safe, I definitely want to get my hands, I want to get my gun in that holster, if I haven’t already done so. And I want to bring my hands up and I want to say, hey guys, over here, I’m the one that called. The other thing that I might do is I might bring my hands up to about face level, palms out, and show my palms as opposed to sticking them straight up in the air like someone that’s been taken at gunpoint has done over and over because it’s like, “Oh, that guy’s been arrested before.”
So I want to necessarily give that impression, that basically says, hey, I don’t have anything in my hands. I’m the one that’s called. Come over here. What do you want me to do? Identify myself and telling you, telling them that is, what do you want me to do? I think goes a long way towards reducing the chances that you’re going to be mistaken for the shooter.
Yeah. What you’re saying is when the police show up, they don’t know that much yet. And probably the first thing they’re worried about is whether they are safe. They know there’s been a shooting and they’re really wondering whether they themselves may be targeted. And what you want to do is assure them by your actions and your words that you are no threat to them.
Everything, my words, my nonverbals, and most importantly, my hands, because people kill you with their hands.
Don, one thing that we remind people about all the time is that in a self-defense shooting, especially if someone’s been killed, that’s a homicide one way or the other. And that when police respond to a self-defense shooting and there’s been a fatality, you are immediately a suspect in a homicide. You might be found justified in that, but it’s still a homicide. And what I’m leading up to is, as an armed defender, despite whatever claim you’ve made on 9-1-1, or what you say when the officers arrive, you should probably be mentally prepared to be treated as a suspect in a homicide, which means you might be asked to get on the ground. You might find yourself in the back seat of a police car. And I think it’s smart to know that in advance so that you don’t get offended or provide any resistance when that happens.
Yeah. You’re likely to be handcuffed. Sure. Likely to spend a considerable amount of time in the patrol car while the responding officers sort things out to help identify witnesses and get a general sense of what happened. Of course, by the time that they get there, they already know, or will know soon that you are the one who has acknowledged being the shooter and they’re going to have a victim; a shooting victim of some sort. Then it’s a question of who’s the victim of the crime and who justifiably defended themselves. And that’s going to take a good while to sort out, if ever.
Ultimately, the conclusion may simply be to gather all of the information that can be gathered and send it over to the prosecutor’s office for a decision on charging. And then that may wind up in the hands of a grand jury before it’s ever been clearly established that they think there’s enough evidence to prosecute you.
But your point is well taken, Shawn. Self-defense is an affirmative defense. You can’t even raise it in court until there is some evidence in the record of self-defense. Sometimes that can be presented by the prosecution witnesses or come in through them. But typically, you may have to testify or provide some concrete evidence that supports a claim of self-defense. So until that actually happens, you’re in a sense, you’ve done everything the prosecution needs to prove to convict you of a crime by shooting and killing or shooting and seriously injuring someone with the proviso that if there’s enough evidence to raise a reasonable doubt about whether it was in self-defense, then you can make that claim.
So, you’re right. You’re behind the eight ball. On the other hand, you want to do those things that dispel the fear that the police may have on their response of you, but also begin to help them understand from your perspective that you acted in self-defense, for no other reason that they can begin to look for evidence that will help corroborate that. It may not be evident to you that they even care about such things, which is why you’ll be handcuffed, you’ll be placed in the car for people’s safety.
You may be put on the ground and frisked. You may be treated harshly. None of that should matter to you. None of that should give you any reason to be aggressive or vulgar or dismissive – any of the things that you can do and say that will paint you in a bad light because as soon as people start showing up from the 9-1-1 call on, you’re the center of attention at that point. And what you do and how you do it and what you say and how you say it, how you hold yourself out, whether you act appropriately to things that are being said, whether they think you’re taking this lightly or seriously, whether you appear to be reasonably composed or just out of control, all will factor into the assessment of the case and ultimately into the credibility of your claim of self-defense.
Steve, from a law enforcement perspective, what would you tell people about what to expect at that point from responding officers to a shooting, or having the mindset of you are a suspect and you might be treated like that for a while?
Well, just be prepared for that. One of the things that you can do to kind of reduce their stress levels is to keep your hands exposed and don’t move fast, regardless of what you’re asked to do. If they say, “Where’s the gun?”, don’t quickly reach for your shirt to show them the gun. Just move slow. A lot of this depends upon the personality and the temperament of the concealed carrier who’s involved in it. And some people it’s like, “Hh my God!” They’re all jittery and all this other stuff. That’s fine. Be authentic. Don’t come up with a script of, “I was forced to defend myself, he did this …” That sounds a little bit contrived. Just go ahead and just say something to the effect of, that guy threatened to kill me. That guy attacked me and I was forced to shoot him.
And, Don, I’m sure can elaborate on this a little bit. I’ll give a full statement once I’ve had a chance to speak with my attorney. And then, for the most part, shut up. You can answer questions about who you are, where you live, stuff like that. But in terms of giving any details about what is going on or what happened at the time, I don’t think then is the time to discuss that. In many instances, you’re going to be handled very respectfully. And in other instances, especially depending upon the jurisdiction or state and city in which you live, you may be handled fairly roughly, especially if it’s an inexperienced officer.
Maybe they’ve only been out of FTO training a short time. This may be the first shooting they’ve ever responded to in which there was a person who admitted to being the shooter that’s still at the scene. Just be prepared for that. And like Don said, if they’re a little bit rough with you or something, don’t argue with them. If, for instance, somebody pushed the cuffs on too tight, definitely let them know. As law officers, we’re responsible for the health and safety of those persons that are in our custody, but for the most part, being cooperative, and a bit quiet is just definitely, in my opinion, the best way to go.
The next point on our list is providing initial information, and you’re going to have to have some interaction with the law enforcement officers. But as Steve says, we don’t want to make statements that could be used against us, or quite frankly, you and I know from experience, that even what you think might have happened in the immediate aftermath isn’t supported by the evidence. You can misperceive things, and everything you say could expand the legal risk that you have in the investigation and potential prosecution following. But on the other hand, you have to be respectful and cooperative with the responding officers. So that makes it a difficult moment to navigate.
I think it’s extremely difficult to navigate and there’s no absolutely clear answer that best serves everyone in every situation. And part of that is because it’s unpredictable how the trauma of the experience will affect you; how clearly you are thinking. Pardon me, how able you would be to actually give a detailed statement. It’s clearly established that undergoing an event such as a life-threatening experience that has resulted in you having to take direct action to save yourself, the trauma that’s going to cause you is going to be long-lasting, but it’s going to be immediate as well.
It’s going to surge adrenaline through the body. It’s going to do a number of physiological things that you can’t control and probably don’t know how it’s going to affect you. So, many of our listeners have heard that it’s becoming commonplace these days, that police officers are given two or three days after a police shooting to compose themselves and get a baseline before they are questioned in detail about what happened. Well, everybody else goes through that same stuff too, but you typically don’t have the luxury of having that opportunity. So what we do instead is give some general guidelines for what to do when interacting with the police, following a self-defense shooting.
It can be a wide spectrum based on who you are, how capable you are at handling any kind of inquiry. Stephen Maddox, for example, got several things wrong about personal information. Forgot how many kids he had or the name of the street he lived on. Those kinds of things, simply because of what he had gone through that led up to the questioning. So, when I say the spectrum, a lot of people will say, “Don’t say anything ever.” When the police show up say, “I have the right to a lawyer and I’m not going to talk to you until I get one.” And on the other end of it, they just start talking, thinking that the more they say, the better their chances are of not being arrested, and they just talk and talk and talk and talk.
And I can tell you that both extremes have their own pitfalls. The guy who talks too much inevitably is going to say something that has to be explained later. That’s one of the hardest things a defense lawyer can do in a trial – especially a serious self-defense trial – is have to explain an answer that was given to law enforcement. It’s recorded, it’s videotaped, it’s in full view of the jury. And it’s probably going to be the jumping point for the prosecutor. So when something is said that’s foolish or not reliable, or worse, that’s clearly a lie, you are pinning yourself in a corner and at a huge disadvantage.
Sorry. Of course, our context for these conversations has to be that this is in a sense what’s characterized as a “good guy shooting.” In fact, you were threatened. In fact, you had to respond to the threat to save yourself or someone else, and you did so in a reasonable way. That’s the background. We all know that there are lots of baloney self-defense claims and the police don’t know how to sort that out right from the beginning. They’re likely to be suspicious, no matter how genuine you sound, they probably won’t take what you say at face value, which I think may lead to some of the way that you’re being treated.
So you’re surprised. You’re the guy that saved the day. You saved yourself, you saved someone else. And now you can’t believe that they’re being harsh with you, that they’re making you get down on the ground, that they’re frisking you, that they’re cuffing you, that they’re not being nice guys and treating you the way you think you should be treated because you just ridded society of this particular menace. So when people view this from that perspective, you’re going to make statements that are going to be harmful to the case.
So even in the good guy shootings, and that’s the ones we’re talking about, our recommendation is you provided clear identifying information. You make it clear that you were attacked and that you had to defend yourself and not say a whole lot more on that issue other than you intend to fully cooperate. You can certainly add you’re pretty shaken at the moment and you will cooperate as soon as you’ve had the opportunity to consult with counsel. And that’s the safest, easiest way that most people can go forward and not hurt themselves in those early steps of the case.
I wanted to bring us around to something Steve said at the beginning of this particular part of the conversation about being authentic, being genuine in how you respond because there are some people who feel, like you say, “I was attacked. I was forced to defend myself,” and that’s the script, or “I was the victim!” and that’s the script – and somehow that declaration sets into course motions that will lead you to being justified. But if those aren’t things that you can say authentically or genuinely in those terms, or in the context of the particular shooting that you’re involved with, that can work against you. And so I feel like your point, Steve, be authentic, use the vocabulary that you’re comfortable using to make this claim that you were attacked, that you fired in self-defense, and I think Don, you can be cooperative and polite and show respect to the officers and even say words, as long as you’re not talking about the things that are relevant to the shooting.
Right? And if it’s just, “yes, I’ll be happy to go to the car” or, “oh yeah, no, I can tell you, my daughter is at home” or “she’s coming,” or things like that are ways that demonstrate that you’re being cooperative. But when it comes to anything that you feel like is getting into the details of the case, I think you can simply say, “Listen, I’m shaken, and I really would like to wait until I have an attorney present to sit down and talk with you in detail about this.” There’s a polite way to say that, and the police officers know this, and if you’re not being defiant to them, it should be a pretty smooth interaction. Wouldn’t you think?
Yeah, I would think so. Maybe we should take a second and talk about the kinds of police contact you’re likely to have. The first one of course is the 9-1-1 call, that’s recorded, and that’s going to be on full view for the jury down the road if you wind up getting charged. Whether you make the call, and sometimes it may even be better depending on the circumstances, if there’s someone else there that can make the call and set the stage for the responding officers. But in any event, that’s a preliminary statement to the police that is very basic, it tells them what they need to know about the incident and they respond and then that’s about it. That’s all you really say. Then there’s going to be the responding officers. That’s probably whoever’s closest when they get the call, when they respond.
They’re going to do a quick assessment of threat. They’re going to secure the scene. They’re going to have some initial contact, but they aren’t truly the investigating officers. Frankly, they may not even be all that interested in talking with you in detail. They may want some of that information that we’re talking about, but they aren’t typically the people that sit you down in a room or in a car and take a three hour statement. That’s when the case is handed off to the detective, typically. So I’ve seen that over and over and over again, where the person cooperates at the scene and then agrees to go to the station for a more detailed interview. They’re usually handed over to the detective at that point who may not even have been at the scene. And then they do their detective thing. Steve is fully aware of the techniques of interrogation.
Some of them are truly exploring where you’re trying to get information, trying to learn what happened. Others are much more confrontational where there’s a perception by law enforcement they already know what happened. Now they’re trying to get you to acknowledge that or make admissions. Some of the information may be wrong that they’re using at that point. In fact, law enforcement can, within some limitations, lie in order to get information from you or test your reaction, those kinds of things. So on this progression at the scene, we’ve talked about, you provide basic information. We also want to get to the point of helping the police identify valuable third party information and evidence and such. So what we would recommend is when the detective shows up, or when you’re asked to go to the station to give a more detailed interview, that it’s clear at that point, that you will cooperate, that you are happy to provide additional information to assisting the investigation, because you acted in self-defense.
However, before you do that, you’d like to have an opportunity to consult with counsel. And I can think of several instances where they said, okay, here’s the detective’s number. When you get your lawyer, give us a call, and that’s exactly what happened. And then the lawyer and the defender had a chance to get everybody up to speed and then make an intelligent, informed decision whether to have that detailed interview or whether, to postpone it, or simply not to have it at all. And I think that’s the best way to avoid saying things that ultimately undermine the case, simply because you haven’t had a chance to talk with someone that’s experienced in the system, that understands how this case will progress and connect on your behalf, to be sure that it doesn’t go off the rails.
So, there’s a lot in there, Don, and maybe two things I want to talk about is this one idea that the investigators are allowed to, in certain circumstances, lie to you. They may act like your friend. They may make you feel as though they are on your side to get you talking. And that also when you’re officially entitled to be mirandized, have your rights read to you, is a very ambiguous line. So they can have a conversation with you. And as long as you’re willing to talk to them and give them answers and have a conversation, they can keep talking to you until the point that they’re ready to detain you officially, and then they’re supposed to mirandize you. But even if they do and you keep talking or if they fail to mirandize you, and you say those things still can impact your case negatively. So I think it’s important that people realize that if they’re being treated like the bad guy, they might not know it at first. And they can say a lot of things before they realize they’re in trouble, that can come back to haunt them.
Very few people, frankly probably including lawyers that aren’t criminal defense lawyers or prosecutors understand that process. They’re a fish out of water. They are holding a square dance in a minefield. They just don’t know how to act, what to say, what not to say with fully good intentions of just going in there and telling the truth about everything. Unless you know how the process works and where you need to protect yourself and where you can comfortably provide information that will help you, you’re going to make a mistake. You’re going to say something that you have to fix later. And when I say “fix,” I don’t mean come up with a better story that’s a lie. You have to explain things in such a way that you maintain your credit.
There’s nothing worse for a defense lawyer, I’ve mentioned this before, even today, than trying to explain a statement that a defendant, a defender made to law enforcement, or in some context, as being inaccurate or incomplete. As soon as you do that, it’s being characterized as a lie. Somebody that’s not telling the whole truth and nothing but the truth. And you can’t get to that point on your own, frankly. No matter how experienced and competent and skilled you are, you are a fish out of water when you’re trying to do that.
One of the points here on this list is identifying case elements of the officers. So while we’re walking this – doing this square dance in a minefield, like you say – walking this tight rope on how to interact with the officers, what to tell them, what not to tell them in this immediate circumstance. There might be things that you know, that aren’t clearly apparent to responding officers that could become important evidence that support your claim of self-defense. And if the person has run off, like you say, Steve pointing in the direction that they ran off showing where the incident happened, if there’s evidence there knowing where shell casings are, or if there was a neighbor that you believe saw it, you’re going to want them to be a witness to that. If there are cameras that you know about, anything, especially if you’re very confident that you’re justified in this, any evidence that is there that supports that – you’re going to want police to find, and pointing that out to them during this time is not ill advised. Would you say that’s true, Don?
Yeah. I think that identifying people that are witnesses, perhaps identifying where you know there might be some cameras. You may have a neighbor that has a ring doorbell or something, even I suppose if it’s in a spot where there might be other cameras, parking lot cameras, something across the street that isn’t obvious, because it could result later in evidence being destroyed, camera security systems in my experience typically recycle after a period of time. And if the footage isn’t secured fairly early on, then the hard drive or whatever can be written over and that evidence lost. Certainly if there were witnesses that you saw that aren’t there, being able to tell the police who they are or what direction they went, all of that stuff helps the police do a thorough job. Because if you acted in lawful self-defense, you want the police to do a thorough job. Frankly, in my experience, the one thing that wins cases is forensic evidence.
There’s lots of talk, lots of explanation, lots of people justifying what they did, but if the forensic evidence corroborates their explanation of what they did, they are in a far superior position than if it’s just their story, that they don’t have any physical evidence to corroborate. So like you said, picking up the shell casing or the police finding where that trail of blood led or as they follow that trail of blood, where the guy went and they find the knife that you said he had, or they find the gun that he dropped. Or in your explanation that you explain the relative distances between you and that’s corroborated ultimately by some lab testing that shows gunshot residue and such. All of that, that ultimately bolsters your statement and ultimately is incredibly valuable. And some of that’s subject to being lost. So to the extent that you can help the police do a good job, you want to do that.
And on that point, though, Steve, from a law enforcement perspective, you want to make sure you don’t touch anything at this point. You can point out evidence where you don’t want to move any evidence or touch it or clean it, or anything, you need to leave everything just the way it is. Right?
Exactly. And I think also make very careful note of where perhaps he was, she was, where you were, those positions they were. This question is for Don. Don, if I recall in the Stephen Maddox case, did not the CCW safe investigator that was sent to the scene, uncover some forensic evidence that the local police agency overlooked?
I don’t remember that specifically, Steve, although I know that with CCW Safe’s involvement, it was determined ultimately that the video surveillance system, which captured some parts of this with multiple camera systems was out of sync, meaning that you could look at the camera view, think you were seeing something in sequence with other camera views, and be completely misled. I know I’m not very clear, but the bottom line was with CCW Safe’s help, the lawyers were able to completely dismantle what was the initial prosecution theory about how this thing played out and by dismantling the prosecution theory and being able to show that the conclusion was wrong about one of these interactions. It simply undermined the whole premeditation notion, which had caused the prosecutor to seek first degree murder to start with, and then dispelled and rebutted all of this evidence that the prosecutor was relying on to say that Stephen was lying about certain things.
I think though one of the most compelling things in that case about evidence at the scene that wasn’t appreciated first, was on the clothing of the deceased were some clear, residue issues that the medical examiner missed, that everybody missed that was handling the evidence. And with CCW Safe’s help, in fact, I was directly involved in helping find an expert witness, a forensic pathologist to examine this clothing and was able to determine contrary to the medical examiner, that there were actually what they called cylinder gap residue on the clothing. The cylinder gap, this was a revolver involved. And Steve, you know better than I, but the notion is if you fire a revolver in close contact with clothing or something for which the gunshot residue can be deposited, you’ll actually see a bit of a pattern. And the bit of the pattern will help you determine the distance of the shot.
Now, one of the theories was that Stephen Maddox shot his attacker while his attacker was seated on his motorcycle, obviously. And Stephen’s explanation was no, the guy charged me. He attacked me. He knocked me to the ground and at least one of the shots was fired with him on top of me. And we were able to prove through this cylinder gap, evidence that that’s in fact exactly what happened. There was, when you looked at it, the distinct and clear outline of the cylinder because of this residue. It was phenomenal, absolutely phenomenal and discovered and proved clearly obviously persuasive because the jury was only out a couple of hours or so finding him not guilty of everything. And that was, I think, because of attention to detail, evidence that the police missed and was presented to the jury solely because of the expert witness, which was provided through CCW Safe.
Yeah. That was a… And there’s lots and lots of those explanations. And then the George Zimmerman, Trayvon Martin case, the forensic ballistic gunshot residue evidence was critical in being able to prove the relative position of the individuals when the shot was fired. And I can’t emphasize enough the importance of forensic evidence in helping the jury resolve conflicts in the evidence otherwise, and being confident that they’ve made the right decision on critical, critical issues about who is the aggressor, how did the shooting take place? And is there clear evidence of self-defense?
That is incredible. Shawn, do you know what cylinder gap is?
Yeah. When you have that cylinder, the round is fired through the cylinder and it has to make a transition from the cylinder into the barrel. There’s a small gap and that escaping powders, and even you could actually see the flash can be seen through that gap. And so just throwing that out for some of our viewers.
Yeah. And to that point, Don, like when it comes to giving statements about things, there is evidence left behind in a shooting that you can’t begin to conceive of.
Oh my goodness. Yes. At the molecular level. Sure.
Yeah. There’s things that the investigator’s going to find. So even if you happen to confabulate a detail, meaning you have a gap in your memory, but you think, oh, I must have walked down that hall and touched this thing, but you didn’t, things that are benign and not even said intentionally to mislead can be wrong accidentally. And then there’s some microscopic piece of evidence or something like cylinder gap if you don’t realize that’s existing, could then show up and show that part of your story to be incorrect. And that throws everything else that you say on your behalf into controversy.
So, Stephen told them clearly that his attacker was on top of him. They were wrestling by the time some of the shots were fired and that ultimately saved his life. Frankly, he was looking at a mandatory life sentence with no possibility of parole had he been convicted. So it shows you this continuum or the spectrum I was talking about. Stephen said too much, he didn’t take advantage of the opportunity to get counsel. After he gave the preliminary information, he sat in a room for several hours and nobody can withstand questioning for several hours without saying something that’s inconsistent or at least ill advised, or having just experienced a traumatic event. Something that just later on doesn’t make sense. On the other hand, he gave information that became critically important to the case and to the investigation.
Had he said, when the police arrived, “Hey, I know my rights. I’m not talking to you guys. I want a lawyer,” and if that had been the only statement he made, which was perfectly legal to have done that, then the case would’ve been dramatically different. So when someone faces that situation, they almost have to judge for themselves how capable they are, how much they can say, knowing it’s going to be accurate, but the safest direction to take, and we’ve talked about is just what we’ve talked about. You identify yourself, you dispel the threats, you provide basic information that helps law enforcement know this is a self-defense case. You point out evidence that they may not be obvious or can lead to the discovery of other evidence. And you shut up and you don’t get interviewed by the detectives, unless you have a lawyer. That’s my bottom line, one size fits all, if there is such a thing.
All right, that’s the podcast for today. Thanks for listening through to the end. We’re going to have our third and final part of this conversation about post incident actions next week. Until then be smart, stay safe and take care.