One of the most controversial elements in teaching defensive deadly force is what to say to the police when they arrive. A near-death experience alters perceptions and memories: you are unlikely to be able to correctly answer questions like “Exactly how far away was he when you fired? How many shots did you fire? What exactly was said before the shooting started?” And those predictable innocent mistakes can easily be seen as lying about it later.

At the same time, the conventional wisdom of “Say nothing to the police without a lawyer present” is great advice for guilty people but sub-optimal for those who fired in legitimate self-defense. If the cops don’t have your side of the story, they don’t know what evidence to look for, what witnesses might support your account of events, etc. You will have left them without your side of it, without the truth of the matter.  I’ve told my students for years that “A guilty man’s lawyer who gives you a guilty man’s advice and a guilty man’s defense is likely to get you a guilty man’s verdict.”

I present one voice of experience that’s in agreement with me, and with the limited statement of my five-point checklist of what needs to be established right off the bat.  You’ve seen me quote Greg Ellifretz here before. He is a voice of experience in law enforcement and in use of force training, and one of our great instructors today. I strongly recommend that you subscribe to his Weekly Knowledge Dump.

Where, recently, I noticed this

I can only say, “Amen.”

29 COMMENTS

  1. This is why the training that you do is so important, Mas. So many people, including people with concealed carry permits, do not understand the law nor do they understand how to interact with law enforcement. As a result, they make numerous mistakes that may well land them in prison.

    Here is a recent case that illustrates this problem perfectly (per Andrew Branca):

    https://legalinsurrection.com/2023/01/houston-taqueria-shooting-legally-justified-killing-or-simply-an-execution/

    Having taken both the MAG-20 (legal) and full MAG-40 courses, I spotted all kinds of mistakes made by the concealed carry holder in this shooting. No doubt, with Mas’ expertise, he will spot even more problems that I did. Mr. Branca also does an excellent job of highlighting the problems with this shooting. I recommend that everyone read every word of his legal analysis as given at the above link.

    The result? This defender is facing a Grand Jury and, if the prosecutor really wants to have a go, I could easily see him being convicted of manslaughter if not outright murder.

    This guy (IMHO) mishandled the shooting, itself, and he certainly mishandled the initial interactions with law enforcement. Clearly, he was not one of your former students, Mas.

    When the legal dust settles from this incident (however it turns out), I would think that this would be a good case for an “Ayoob File”. An Ayoob File that illustrates what NOT TO DO!

      • That is interesting, but I don’t believe that Texas is typical. I know that George Zimmerman’s case was not brought before a Grand Jury. I don’t remember it being done in the Rittenhouse Case either but I am not 100% positive about Rittenhouse.

        Nevertheless, my point is still valid. The Office of the Prosecutor controls all the evidence presented to a Grand Jury. It is a legal proverb that they can get a Grand Jury to indict a “Ham Sandwich” if they wish to do so.

        Therefore, if the Office of the Prosecutor wants to “have a go” at this guy, I am sure that they can structure the evidence so that the Grand Jury will likely return a “True Bill” for murder. Perhaps with a lesser included offense of manslaughter thrown in for good measure.

        Given the egregious nature of that final “kill shot”, I think they would have a fair chance, at trial, of disproving some of the elements of self-defense. They could attack imminence since, when the final shot was fired, the armed robber was already down and disarmed. They can also attack the reasonableness of that final shot.

        As you know, if any necessary part of a self-defense claim falls, then the “chain is broken” and self-defense fails entirely. If self-defense fails, then the police have video of this guy executing an unarmed man with a kill shot to the head. Sounds like at least 2nd Degree Murder to me.

        Unlike Rittenhouse, who showed great and wise judgment as to when to fire and when to stop firing, this guy was too quick on pulling that trigger. As Branca pointed out, the last series of shots were questionable and the final, execution shot, was beyond the pale.

        Like I said, lots of lessons to learn in this shooting. It teaches one what not to do.

    • Regarding that shooting, there is a YouTube video from some YouTube guy who has the channel “Heavy Duty Country”. It’s at: https://www.youtube.com/watch?v=v4ds5EQqN2w
      In the video the guy maintains a fairly neutral attitude about whether or not the shooting (and in particular the final shot to the back of the guy’s head) was justified, though he seems to lean more toward thinking it was all okay. But the Comments section is filled with Internet Warriors who have no doubt it is okay to walk up to a person after he’s been shot multiple times and deliver a coup de grace shot to the back of his head. I sure hope those types don’t actually carry weapons (though I know, many of them do).

    • In the case of that shooting, the shooter and his lawyer have the benefit of looking at the restaurant’s CCTV video *before* making any statement to the police.

      I think that is a huge advantage over the typical stay-where-you-are-and-give-answers-on-the-spot, especially if you did nothing wrong.

      Also in that specific area, the DA is a Soros-sponsored leftist…so OF COURSE he is going to try to prosecute the shooter, even if it was justified- just like with Rittenhouse.

      • “…so OF COURSE he is going to try to prosecute the shooter…”

        I don’t know. Our World of today is backwards. That which was White is now called Black. That which used to be called Black is now called White. We have “de-fund the police” combined with “no cash bail” and “open borders” where people and fentanyl cross openly. The Woke culture has reversed our poles.

        The rule today seems to be that, if you are a criminal, you are good to go. No one is looking to prosecute you. If you are a good guy and an upright citizen, then “Watch Out” because you are an enemy of “The State” and they want to take you down.

        So, someone who does a totally “clean shoot”, like Rittenhouse, they go after like mad dogs. Since this shooting seems to be questionable if not outright shady, maybe they will let him go with a box of chocolates and a “Thank You” card?

        I would not care to make a prediction as to how the Grand Jury will jump in this case. An upside-down World is unpredictable to me. I like a World where one can find logic and reason. Increasingly, I find myself to be a “stranger in a strange land”.

    • At this point, after perpetrating any self-defense shooting, seriously, I am going to produce my laminated Massad Ayoob five-point card, as well as my ACLDN card, concealed weapons card, FBI good-conduct fingerprint card, Covid-19 VAX card, ID’s, etc., and go into a series of finger pointings (or tongue pointings if I am needlessly, questionably, and even criminally handcuffed) at the points on the card and associated items like the weapons in my defeated assailants’ hands, gang tats, complaints to sign, etc. That way I should not have to say anything in order to get on the good side of the officers, even if they are friends and relatives, lodge brothers or sisters, or fellow cartel employees of the aforesaid assailants. I might even go so far as to grunt a little and maybe cry with chagrin while I point, though.

    • I would like to think I have enough training not to take the last shot but then I have never been in a gunfight. The literature is full of information about how hard it is to STOP fighting. A lot of it is military with different rules of engagement but the same human bio-chemistry. I would think the shooter could use some expert testimony about bio-chemistry and armed conflict. Might get him involuntary manslaughter rather than murder. Of course, there could be evidence other than the video that would provide self-defense justification for the final shot.

  2. Mas this is where I disagree with you, and so does every attorney out there worth his or her salt. Anyone who talks to the police is an absolute fool, the police can and will hang anyone to make their case. Civilians are not legal experts and neither are the police, We the People have a right to remain silent and should every and any time when the police are attempting to talk with them. Saying the only people who refuse to speak to the police are guilty is the most ignorant thing anyone could say…..every one of our founding fathers disagrees with your bad advice and they knew much better…especially John Jay! I too am a former police officer with the NYC Housing police and the NYPD and I’ve never, ever heard anyone talk themselves out of an arrest, anyone talking to the police always talked their way into more trouble and into central booking. If the police get your statement wrong they have qualified immunity and the citizen and the innocent civilian they just victimized does not. Never, ever speak to the police…your attorney will thank you for it.

    • Bob, we have different experiences. Have you not considered the importance of making police aware of evidence before it is missed, misplaced, or removed? Or pointing out witnesses? Or letting the cops know who was the bad guy and who was the good guy?

    • I was in an auto accident. Soon after the impact, an officer showed up, and asked me what happened. I made a one sentence statement under the influence of adrenaline, and the officer found me at fault. When I went to see him three days later, and showed him evidence that it wasn’t the way the officer wrote, he told me he wasn’t going to change his report.

      Luckily, the hearing officer for the surcharge looked at the evidence, and indicated that there was no way that the accident went down the way the officer wrote, and found me not responsible.

      You really need to avoid making comments until after you have calmed down.

  3. If you get a chance check out the book You Have the Right to Remain Innocent.
    It is written by James Duane, the “Don’t talk to the police” video guy.

    He covers many cases where the police took a bit of information from the suspect and proceeded to build an entire case around it & get a conviction only for DNA or other evidence to exonerate them later. Many times years later, years they had spent in prison.

    It provides an interesting perspective and shatters the myth “only the guilty benefit from the 5th amendment”.

    None of the cases in that book were self defense.
    However it drives home the importance of not saying anything more than the bare minimum if you choose to talk to police.

    • Another excellent book is Arrest Proof Yourself, which can be found as a free PDF download. It should be required reading for every high school student before they graduate.

  4. Biker Bob wrote:
    I’ve never, ever heard anyone talk themselves out of an arrest’.

    When I wore blue people talked me out of arresting them all the time.
    Brilliant defenses like:
    “no, he lives next door”.
    “that’s my brother, he’s in the kitchen”.
    “what fight up the street? I’ve just stepped out of this pub. Everyone in there will confirm that”.
    That was in London. Maybe US cops are different.

    John Mohan wrote:
    ‘Comments section is filled with Internet Warriors who have no doubt it is okay to walk up to a person after he’s been shot multiple times and deliver a coup de grace shot to the back of his head.’

    Someone ,think it was a yoob (what the hell are yoobs? 🙂 )once wrote (not verbatim I’m doing this from memory)
    ‘contrary to popular belief the cops won’t carry the mugger with a hole in his forehead away and congratulate you. And hungry lawyers will soon find a relative you have ‘deprived of their loved one’ to sue on behalf of. Every comment you’e ever written or said will be ferreted out and that ‘kill them all – let god sort it out’ macho posing doesn’t sound so tough when he’s in court citing a witness to you executing a helpless man; you’.
    If you really are planning on taking a life unnecessarily. You don’t need a gun, you need a psychiatrist.

  5. Mr. Ayoob:

    Our MN carry permit instructors said almost exactly the same things that you do, but just phrased it a little differently. I carry a small card in my wallet; on one side are “4 easily popped balloons” of self-defense, and on the other are post-shooting things you probably want to say to the police:

    – “I was attacked. There’s the attacker from whom I defended myself/others, and there’s his weapon.”
    – “I will sign a complaint after speaking with my attorney.”
    – “There’s the evidence (and/or) witnesses.”
    – “I will fully comply with an investigation after speaking with my attorney, and I do not consent to a search.”

    All the instructors noted that the last part of the last point is probably useless, since the police certainly have probable cause to justify a search, but it at least gets into the record that you did not consent to their search.

    The attorney I used to have on file (“No, this isn’t a retainer situation, just keep my number on you”) told me after I contacted him, “These are all great, but once you’re done, SHUT UP. I’ve had more clients talk themselves into jail when they can’t keep their mouth shut than anything else.”

    I’ve been carrying for 18 years now (since MN changed to a “shall issue” state) and I’ve never had to draw my pistol from its holster except at the range and to clean it. I pray I never have to, but if I do, I also hope that I can keep control of myself after the adrenaline dump and subsequent thankfulness for being alive, and just KEEP MY MOUTH SHUT afterwards except for those points.

  6. Come on, guys. This is legally simple. EVEN THE FIRST SHOT WAS NOT LEGALLY JUSTIFIED, BECAUSE THE GOOD GUY SHOT THE BAD GUY IN THE BACK. Even the police are not allowed to shoot bad guys in the back. The legally proper thing to do would have been for the good guy to let the bad guy leave, or yell at him to drop his gun. If the bad guy turned, and pointed his gun at the good guy, then the good guy could shoot the bad guy legally.

    As it turns out, the good guy is a hero, who made the world a better place, by sending the bad guy out of this world. But, legally, the good guy did EVERYTHING wrong. In NJ, the good guy would spend at least 20 years in prison. Maybe if the good guy claims he is transitioning to become a female, they might go easy on him.

    In my dreams, if I was the judge, I would fine the good guy $200 for doing everything legally wrong. Then, I would require him to take all of Massad Ayoob’s classes.

    Also, in my dreams, I have about had it with the American criminal justice system. I believe this is yet another area where the private sector may do a better job than the public sector. If we disband the police, and defund them 100%, and do the same with the criminal courts and prisons, justice would be carried out by We, the People. If good men and women work together, they can defeat the criminal gangs that would try to dominate us.

    Am I crazy? Do I really believe vigilantes could administer justice better than governments? I don’t know, but it sure would be interesting to conduct such an experiment. (Hey, Spielberg, here’s a movie idea for you.)

    If you favor government justice over vigilante justice, I want you to read in Wikipedia how the government has treated Tex Watson. He did most of the killing for Charles Manson in 1969, and he is still alive in a San Diego prison. Not a bad life, and he doesn’t worry about paying taxes and bills like you do, sucker.

    • “Maybe if the good guy claims he is transitioning to become a female, they might go easy on him.”

      It is (sadly) true that a lot of these decisions, on whether to prosecute or not, are politically driven these days.

      If the prosecutor is highly political and sees a chance to score political points, he will act fast. History shows that, when they want someone’s scalp, they don’t let the grass grow.

      The charged Rittenhouse in less than 72 hours. The same thing with some of these racial shootings where a white cop shot a black suspect. In multiple cases, the cop was thrown to the wolves, fired from his job, and charged with murder in less than 72 hours.

      On the other hand, in cases where the person has left-wing privilege working for him, they drag their feet on the decision. Look at the Alec Baldwin case. Mose lawyers say that there is a good manslaughter case that could be made against Baldwin. However, it is VERY CLEAR that the New Mexico prosecutor’s office does not want to make it. They have deliberately dragged their feet. It has been more than a year and no decision is forthcoming. Clearly, they are simply “waiting out the clock”. Waiting until the story dies out in the public’s mind. They will never charge Baldwin with anything. He has a left-wing “Get of of Jail Free” card in his pocket. I bet that the decision that they would NOT CHARGE Baldwin was made within 72 hours of the Rust Shooting.

      In the case of the above listed Taco Shooting, it is not clear. If they really wanted his scalp, the prosecutor’s office would have expedited things already. However, he is not off the hook yet. I am guessing that they are waiting to see what the medical evidence shows. If it shows that the armed robber was killed by, say, one of the first four shots, and that the final “kill shot” was performed on a man already dead, I expect that they will structure the Grand Jury evidence so as to not get a True Bill.

      On the other hand, if the medical evidence shows that the robber was still alive when that final “kill shot” was administered, they will likely go for a murder charge. The autopsy report is going to be critical in this case, IMHO. I expect that they won’t convene a Grand Jury until after the medical reports are all in hand.

    • Yes, it can be legal for a private citizen can shoot someone in the back. Ditto for police. All that matters is whether there is justification for him to be shot at all. If he poses an imminent, unlawful threat to the lives and health of innocent people, he is a walking target. The taqueria robber qualified. The problems with this shooting start with the shots fired after the robber was down. At that point, he no longer posed an imminent threat so there was no justification for continuing to shoot him.

      • Kendahl, JG and Art,

        Thank you for correcting me. I am glad to be wrong. My understanding was that cops could shoot someone in the back if they are known to be dangerous. Somehow, I had it in my head that shooting someone in the back was only allowed in very rare instances. I was wondering why Andrew Branca was not pointing this out.

        I am thankful to be corrected, and now, I’m glad I made my goof, because maybe there are some others out there who thought, like I did, that shooting a perp in the back was ALWAYS unjustified. After all, when a criminal’s back is turned to me, he is not a threat at that moment.

        Complicated stuff, this self-defense law, but I’m very glad those first four shots were justified.

    • Sorry Roger. Kendahl (below) is correct. It may absolutely be justified to shoot in the back to defend the innocent against imminent deadly threat that the perp presented.

  7. “EVEN THE FIRST SHOT WAS NOT LEGALLY JUSTIFIED, BECAUSE THE GOOD GUY SHOT THE BAD GUY IN THE BACK. ”

    Did you read Andrew Branca’s detailed analysis? He lays out very clearly why the first four shots almost certainly meet the criteria for justifiable use of force.

    • I think that Roger Willco’s comment, certainly the first couple of paragraphs, was pure sarcasm. He seems to be channeling Tom606 recently. 🙂

      I expect it was “tongue in cheek” and not meant to be taken literally.

      Although, his comment that “…legally, the good guy did EVERYTHING wrong. In NJ, the good guy would spend at least 20 years in prison…” is likely true enough!

  8. In Greg Ellifretz’s essay, I noted this hypothetical exchange between an unethical prosecutor and a defendant in a self-defense case:

    Prosecutor: “Is it true that you told officers at the scene that you only fired four rounds?”

    Defendant: “Yes, but…”

    My remedy for this is:

    Before the defendant takes the stand, he should play-act his testimony against a stand-in, so that he is not taken by surprise by anything the prosecutor does, and has an answer ready.

    For this particular question, the answer is “No.” The prosecutor will pounce, read the quoted passage from the defendant’s statement, and ask whether the defendant agrees that he said that. Also, the defense goes over the defendant’s staetem45786

    Defendant answers “Yes”.

    Prosecutor says “But you just denied that you said that.”

    Defendant says “No, I did not.”

    Prosecutor then denounces defendant for blatantly contradicting himself.

    About this time the judge intervenes, asking the defendant to explain. Defendant says “As reported in the statement. I said ‘I THINK I shot four times.’ I was not sure, and in the stress of that moment,I remembered incorrectly.”

    Prosecutor looks like a bully and a fool.

    Note: defense should examine any statements to police by the defendant with fine-tooth comb, and find any contradictions or mistakes, and prepare answers for questions about them.

  9. In reference to the comments (above) about “shooting a man in the back”, I would like to offer this clip from Star Trek Deep Space 9. Pay close attention to the scene with Garak at the end of the video:

    https://www.youtube.com/watch?v=T2fmHAqq3jA

    Garak was my favorite character from DS9. His Worldview was always so tactically sound. He was a master of Realpolitik. 🙂

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