Countless people advise never speaking to the police immediately after a self-defense shooting. I don’t think that’s the best advice, and I may have been the first advocate of what is now known as “the brief statement,” going back to the early 1980s when I started teaching lethal force principles to law-abiding private citizens at Lethal Force Institute. (I now teach it nationwide through https://massadayoobgroup.com.)
We’ve discussed this matter before, but it bears repeating. It appeared recently in the now-online magazine from Athlon Publishing, Combat Handguns, where I’ve written the Self-Defense and the Law column for many, many years now.
As always, your comments are welcome. It is, after all, a contentious topic.
In this day and age, and after a deadly force incident, making an initial, brief statement to the police focused on the bad guy’s aggression and your fear of bodily harm or death seems to be the best approach to me. Then it’s time to shut up and let your defense attorney act on your behalf. Otherwise, the criminal (if he survives) and his buddies surely will lie and set the stage for your prosecution and later, a wrongful death claim.
Should I ever get into a self-defense shooting, I am following your advice. I am under no illusions about the adversarial nature of the legal (not justice) system but your procedures seem like the best way to make that work for me.
If you know that you can function well under pressure, I believe that Mas’s advice is the way to go. If you can’t keep from babbling under pressure, then keeping quiet and requesting an attorney may be better. I’ve recently seen some terrible advice on a “self-defense” channel, i.e. call 911 and say there was a shooting and hang up… what he Hell?
A long time ago a friend who was a retired Air Force fighter pilot was involved in a deadly force incident and the cops weren’t quite sure what to make of him because he was so calm on the 911 call. I guess that’s what dodging SAMs and MIGs in Vietnam does for you.
I had a colleague who was an ASW pilot on a carrier during the Vietnam War. Since N. Vietnam had no subs, they used the ASW assets as bait to get the N Vietnamese to turn on their radars which would then get whacked. That plus carrier landings created a sense of calm. One time when a group of us were discussing weighty budget matters, he was talking when there was an earthquake. Everyone else dove under the table while he never missed a beat. He had to repeat everything he said though.
A few years ago, I supervised the initial scene of a justifiable homicide. The incident began when the deceased used his car to ram the armed citizen’s vehicle. The armed citizen, a competitive pistol shooter, was struck by the suspect’s car in a manner similar to a PIT maneuver used to stop a pursuit. In the split second when the two drivers’ windows were adjacent, the armed citizen fired one round from his pistol, striking the aggressor in the head and stopping the threat. The armed citizen went directly home, called the police, and we detained him. He agreed to speak with detectives, who corroborated his statement with testimony from a passenger in the deceased’s car and video from a nearby business. This incident occurred in the Free State of Florida, so results may vary by jurisdiction. The armed citizen was cleared by the State Attorney’s Office and went home that morning.
I want it clear that I don’t dislike cops; I was one and support ’em. As Mas said, “the brief statement”. Police are trained to extract as much information as possible. They can lie to you with impunity. I have heard of people attempting to assert their 5th Amendment right to remain silent, being it that only applies in court. They then proceed to spill their guts. It’s not just TV. After a few hours of bad cop “interview”, people tire and cave to the good cop. Always remember that anything you say can and WILL BE used against you in court, and you ALWAYS have your 5A rights. In the back of the squad car, you are being recorded. Mas teaches a checklist of the brief things you can say. The last comment you make is, “I wish to remain silent until I have my lawyer with me.” Then, SHUT UP!
Yep. I certainly don’t hate cops, but there are few positive outcomes from interaction with one and many potential negatives.
You can’t tell a good cop from a bad cop by looking and they have the power to ruin your life. Act then with reasonable care.
Great article, with good reminders from the voices of experience with these situations.
People just don’t know what they don’t know.
Mas,
Your argument for “the brief statement” is excellent. Makes total sense. My guess is some people are so afraid of having their words twisted, they decide it is safer to use the silent treatment.
MAG 40 Attendee here. I have always agreed with Mas on this (any other time, I wouldn’t even discuss weather on the street corner with a cop, even as a gesture these days. Seen too much truth on Youtube). My only thought is I’d maybe put witnesses #2 and then the rest. I’m aware confabulation is a thing, I have to wonder if human testimony doesn’t carry more weight than the possible conjectures of a jury about exculpatory evidence of the inanimate sort. Might be wrong. He IS the expert, and I regard him so. Great course, Mas! It was good that I could recall what you said even after 15 years.
The key is the BRIEF bare bones initial statement. There are numerous authorities who advise putting off the actual statement for 24-48 hours. Our brains aren’t the recording devices we like to think. Stress can distort your perceptions and other details may bubble to the surface later. It’s also nice for you and your lawyer to review any video of the incident prior to making a statement. That won’t alter the facts, but you might discover some things you didn’t notice at the time or recall. And, the time/distances may not be as your altered perceptions suggest so: (Mas quote) don’t make time/distance estimates. “He was close enough to kill me.” is better than an obvious (in the video) wrong distance.
Our trainers for the MN carry permit class emphasized that IF you can control yourself in the aftermath, you should make the following four statements to the officers on site:
1. I was attacked (making it clear that YOU were the “victim” in the incident).
2. There’s the evidence (pointing to the perpetrator’s gun/knife/club, whatever) and there are the witnesses (indicating in the presence of other witnesses that you have informed the police that they need to detain and question these people).
3. I will sign a complaint against the perpetrator(s) after I have had a chance to consult with an attorney.
4. I do not consent to a search (whether your home or auto…this is purely pro-forma, since they’re gonna search ANYWAY, but you’ve made clear you did not consent), and I wish to talk to an attorney as soon as possible.
5. SHUT THE HECK UP!
These are more of less identical to the points you suggest; they probably got them from your teachings. All of our instructors also noted that if you’re so full of the adrenaline dump from your attack and you don’t think you can control yourself, you’re better off staying in a state of shock and just keep repeating that you want to talk to an attorney as soon as possible.
I called a prominent (well, in MN) self-defense attorney to ask if he’d take a retainer; he declined, but told me to call him immediately if I ever had a problem. When I asked about the 4 points above (the fifth is just icing on the cake), he said, “That’s great, if you can say only that. When you’re done, just SHUT UP. I’ve had more clients talk themselves into prison when they didn’t have to, so just stay quiet until I get there.” Great guy.
Been carrying for almost 20 years now, everywhere it’s legal, and my carry gun(s) have yet to come out of the holster except at the range this whole time. I hope that I never have to draw it, much less fire it, but just like the fire extinguisher near the wood stove, it’s always there if I really need it.
I’ve had personal experience with this.
A clown hit my car, and when the police showed up, I made an offhand comment that I barely remember. But the officer remembered it, forgetting everything else. He found me at fault, and I had to appeal to the insurance company to get the fault assigned to the other driver.
Five little words could have cost me thousands.
I learned my lesson.
James Smith,
Thanks for sharing that. My mouth has gotten me in a lot of trouble over the years. Not legal trouble, just social misunderstandings. I’m better now, but still . . . . . anything can happen.
Most people don’t know when to shut up.
That’s why lawyers tell you to say nothing. If you have the ability to shut up, the resolve to hold to your legally protected Fifth Amendment rights, and the resolve to not be persuaded then a BRIEF statement can help you.
Something to keep in mind is that nobody ever talked their way out of jail but everyone that talks goes to jail. Law Enforcement is NOT your friend and they want to take someone to jail.
I’ve been a criminal defense attorney for almost fifty years. Every once in a while I’ll find myself in the hallway with a case officer waiting on a jury to come back. Occasionally I’ll ask whether they’d talk to the police without a lawyer if they were accused of a crime. The answer is always “hell no” usually followed by “and I’d want my union rep there too.”
I always advise my CPL classes to follow your advice exactly. Then when they get to the point where they “lawyer up” I tell them to think about this when they’re asked why, if they have nothing to hide, they don’t want to answer more questions. Things can get twisted around with no ill intent on anyone’s part.
Didn’t know James Duane wrote a book. I checked out the excerpt on Amazon. He wrote that he’s been bombarded by people who’ve watched his famous Don’t Talk To The Police video, asking if you should never talk to police in every imaginable scenario. His answer: “Of course not. That would be ridiculous.” Then he gives reasonable examples.
Funny. Wonder how many people never knew that was his position (including me until right now)?
Mas, I find it difficult to believe he would disagree with your advice.
Thinking you are Perry Mason, that you can outwit the cops and win an interrogation is the norm. You aren’t.
If you do the cops will feed your ego and get a conviction.
Once you’ve said all that is good for you and asked for a lawyer; SHUT UP TOTALLY! Every interrogation technique hits a brick wall up against silence.
Ignore the initial friendly start to the interview. When you are worried and grasping at a friendly word. That rapport will make it more difficult for you to clam up later.
Say nothing; “no comment” is two words too many
It is very difficult to stop speaking. A pair of cops I knew used to flip a coin in front of the suspect and explain “we are deciding who the bad cop this time”. And it still worked.
While you don’t have to answer their question.
They DO have to answer some of yours truthfully: this is my decades old UK copper experience.
Can anyone give me an update?
“Do I have a right to silence?”
“Is it the case I can only be kept in a police station, if I am under arrest?”
“Am I free to leave if I am not under arrest?”
“Am I NOT under arrest?”
If they lie answering any of them, they’ll have seriously damaged their case.
If the answer to the last three is “yes” and they are aggressive; just walk out.
njk
nicholas kane,
Thanks for writing that. When I speak, the thoughts enter my mind, and soon after, come out of my mouth. When I write, I re-read what I have written, and edit it, and edit it, and edit it, until I can no longer improve it, (if I have the time to do that). I wonder if it would be better for me, if I find myself in such a position, to write a statement, rather than to verbalize one.
Also, in regard to imitating Perry Mason, some of us have a belief system where we have to tell the truth, because we believe we are always being heard by The Supreme Judge. In such a case, if the truth prevails in court, we will do well. If the court ignores the truth, we will suffer the consequences, but we don’t want to lie before God.
Under that belief system, if the court ignores the truth, you will suffer the consequences in this life but be clean in the next. Meanwhile, the court officials will face no consequences now but have severe consequences in the next life. And the next life is infinitely longer than this one.
Is “ignoring the truth” substantively different from “bearing false witness”?
Reliable Roger Wilco, you are what is right about believing in a just, higher moral power, and acting accordingly. More about this later, sir.
Esteemed retired “Bobbie,” “Copper,” and “Peeler” Nicholas Kane, sir, thank you for your expert input! So great to get your experienced advice. I am going to produce your suggested questions on my Massad Ayoob card and ask any pertinent officer to read and answer them. It will be like having you riding shotgun with me. Just the resource to carry when motoring through predatory “sanctuary cities,” too. And Mr. Ayoob, sir, I also thank you.
I KNOW I let things slip a lot.
Any cop who met me after my initial statement (where I only said what was good for me) wouldn’t know what my voice sounded like!
I’m no theologian, but as far as I’m aware; silence isn’t mentioned in the commandments.
Is keeping your mouth shut breaking ‘Thou shall not bear false witness against thy neighbor’?
.
In fact the commandment doesn’t even forbid lying if it’s not against your neighbour.
End of theological discussion; I don’t know what I’m talking about.
Oh and it goes without saying my phone would be on record the whole time.
Another thing to remember; just because the cops know it, doesn’t mean they can prove it.
The cops can’t sentence you to anything. Only a court can do that and though it might seem they have mountains of evidence against you, the search warrant might have a typo, they got the caution wrong. The witnesses are easily discredited. The evidence is hearsay….
Don’t try and convince the police you are innocent. Their opinion is irrelevant.
There is never anything lost by silence after you’ve said what is good for you.
njk
Silence if fine, a good strategy. Since I have to tell the truth, I can’t have OJ put on the bloody glove, stick the joint of his thumb out, and have him declare that the glove doesn’t fit. Bill Clinton argued as though oral sex wasn’t sex, and he even stated that something depended on the definition of the word “is.” I can’t play those games, or use tricks. I can use silence, or the truth.
Should have been, “Silence is fine, …”
I’m no theologian, either, but my understanding is that “thy neighbor” has a much larger reach than the English language normally gives it. It’s better to just leave the last three words off and stick to “Thou shalt not bear false witness”, against anyone. It’s probably not okay to lie about a guy three streets over, or even someone from another country, just because they aren’t “neighbors”.
Don’t try and convince the police you are innocent. Their opinion is irrelevant.
[IANAL warning] True words. First, if they’re already convinced you’re guilty, nothing you say — and I mean nothing — will change their minds in the next few hours, and even if it did change some minds, there’s always That One Guy who will believe you’re the criminal in spite of overwhelming evidence to the contrary.
Second, it’s ultimately not the police you have to convince anyway. At the outset, you have to convince the DA/SA/prosecutor, so he/she opts not to file charges or apply for an arrest warrant; if charges are filed and a warrant issued, the police WILL arrest you regardless of their belief in your innocence or guilt. If you can’t convince the prosecutor, you’ll have to convince the judge and/or jury.
The self-defense case of George Zimmerman is a perfect example. The police investigators looked at the evidence and his statements and concluded it was a “Good Shoot”. It didn’t matter; the prosecutor believed otherwise, applied for and got a warrant issued, and those same police had to go arrest him. And even after GZ was found Not Guilty at trial, the prosecutor still said to the media that she thinks of him as a murderer. (Turns out, in GZ’s case, the prosecutor was That One Guy … or Gal … who refused to be swayed by evidence.)
Bottom line: the police are gonna do what they’re gonna do. It’s your job to point them to the facts in your favor, and then give them as little else to work with as possible.