The Right to Remain Silent Includes Digital Media, Too
Anyone who has ever seen a cop movie or watched a police procedural on television knows the Miranda Warning: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” The idea that “anything you say can be used against you” is certainly true for statements that a defender makes in the wake of a self-defense shooting, but it can also be true for comments made before a use of force incident – sometimes days or weeks before.
Firearms instructor John Farnam serves as a use of force expert in self-defense cases, and he says that, in his experience, judges have traditionally refused to allow juries to consider statements made well in advance of a shooting unless they were specifically relevant to the facts of the case. Don West, criminal defense attorney and National Trial Counsel for CCW Safe, says that, generally, for a defendant’s prior statements to be allowed into trial, the probative value has to outweigh the prejudicial effect. It means that prosecutors can’t just dredge up random dirt on a defendant and air that dirty laundry in court just to make the accused look bad (not unless it’s in rebuttal to character evidence proffered by the defense).
In recent years, however, John says he has noticed judges become more permissive about allowing a broader scope of prior statements into evidence – especially if that evidence speaks to the defender’s mindset regarding firearms, the value of human life, or violence. The use of deadly force is justified when the defender has a reasonable belief that they face the imminent threat of death or great bodily harm. The key word is “reasonable,” and if a prosecutor can present evidence that a defender has expressed an unreasonable or malicious attitude regarding issues related to the shooting, then they can suggest to the jury that the defender’s actions were equally unreasonable during the matter at hand.
We have explored several cases where a defender’s prior statements or messages sent in texts, emails, or posted on social media have haunted them during their prosecution in the wake of a self-defense shooting.
Veteran Marine sniper and retired UFC fighter Gerald Strebendt shot a drunken motorist who threatened him after rear-ending his vehicle on a dark, remote stretch of highway. The attacker, David Crofut ignored repeated calls to stay back, and Strebendt fired only after Crofut managed to put his hands on the rifle that the defender took from his vehicle when he heard the attacker verbally threatening to kill him. A recording of Strebendt’s 9-1-1 call captured the entire sequence of events.
At first, it seemed a cut-and-dried self-defense case, but soon, prosecutors uncovered some unsavory details from Strebendt’s past. Strebendt’s ex-wife told investigators that he was involved in road rage incidents “all the time,” and she claimed her ex-husband would “break check” other drivers and once tried to run another driver off the road. Six days before the shooting, Strebendt made a Facebook post that seemed eerily prescient: “If you like to drive slow guess what? You should be in the slow lane. If you want to drive greater than the speed limit guess what? You should be in my lane. If you get this confused somehow guess what? I will strike hard and fast like a cobra should the opportunity present itself.” For Strebent’s lawyer, Mike Arnold, it became clear that if the case went to trial, a jury would see that evidence – potentially much more – and prosecutors would argue that Strebendt created the opportunity to shoot Crofut. Arnold cut a savvy plea deal that potentially saved his client from decades behind bars.
Much more recently, Army sergeant and part-time Uber driver Daniel Perry shot armed protestor Garrett Foster during an encounter in Austin, Texas. Perry drove his car near a group of marching demonstrators. Foster, who was legally open-carrying a rifle, approached Perry’s car, and according to the defender, Foster raised the rifle at him before Perry fired a fatal shot in self-defense.
More than a year passed before Perry was charged. During that time, investigators uncovered text messages and social media posts that expressed racist views, violent fantasies, and an unvarnished disdain for protesters. At trial, jurors saw messages Perry sent in the weeks before the shooting. Perry wrote, “I might have to go to Dallas to shoot looters.” In a text thread, Perry wrote, “I might have to kill a few people on my way to work, they are rioting outside my apartment complex.” In the same thread, he explains to his friend how he believes he could kill a protester legally in self-defense. The scenario he describes is very similar to the events that led to the shooting of Garrett Foster. A jury found Perry guilty of murder. Those prior statements that the judge allowed into evidence clearly impacted the verdict.
It turns out, however, that judge allowed the jury to see only a fraction of the horde of disturbing messages prosecutors had amassed. When the controversial verdict drew scrutiny from Texas Governor Greg Abbott, the judge unsealed a 76-page document containing other disturbing messages and comments, evidence the judge would consider before sentencing Perry to a 25-year prison sentence.
On January 30, 2023, Arizona Rancher George Alan Kelly shot at a group of illegal migrants who were trespassing on his property just yards away from the Mexican border. Later in the day, he found one of the men dead on his property, shot in the back. Kelly’s been charged with the migrant’s murder. Prior to the shooting, Kelly self-published a novel about a borderlands rancher who struggles with illegal migrants trespassing on his property. The protagonist, a rancher named George, fires at a pair of men on horseback as they race toward the Mexican border. The character reports the incident to the local sheriff. “The sheriff asked if George thought he had hit either of the riders. George told him that if he had hit one, he hadn’t hit him hard enough.” As of this writing, Kelly still awaits trial. It’s unclear whether the judge will allow jurors to read this passage. Kelly’s attorney, no doubt, will fight hard to keep it out of evidence.
John Farnam says that as armed defenders, “We have to start thinking about this now, in advance, and make sure we’re not out there making threatening comments or appearing to cheerlead for some violent event and doing that in print on some social media page … I can promise you the prosecutor will find that. And the jury will probably hear it.”
One of the tricks to avoiding legal consequences after a self-defense shooting is to “make yourself hard to convict.” John says, “Make yourself an unattractive case. It all comes down to, I suppose, we need to be good people.”
Don West says that a self-defense claim ultimately rests on an assessment of the defender’s intent. If the defender acted reasonably out of fear of imminent great bodily injury or death, then the claim is likely valid. When there is evidence of malice or anger, however, then a self-defense case can be transformed into a criminal homicide. Prosecutors, judges, and juries cannot peer into a defender’s heart to determine a shooter’s true motivations for using deadly force, so the deciders of fact must rely on other evidence that may provide insight into the defender’s disposition – and that can include exploring past statements, texts, emails, and social media posts. The lesson for armed defenders is that what you say, what you post online, and the messages you send with digital media can be used against you if you’re ever involved in a self-defense shooting.
Court documents in the Daniel Perry case include a voicemail from a woman identifying herself as Perry’s mother, urging her son to stop posting “bad things” on Facebook “because it’s really hurting people’s feelings and it’s wrong.” It’s good advice for any concealed carrier.