Making the Decision to Fund Defense of an Act of Self Defense
by Marty Hayes, J.D.
Occasionally we receive a question from a member or prospective member regarding what parameters we use to provide funds for legal representation after an act of self defense. Typically, we have answered the question directly, but I figured it was time to make a separate feature article about the issue, so we can simply send people the link and they can read and understand why we require information establishing your use of force was a legitimate act of self defense.
The question often comes up when prospective members are comparing our assistance to others in the industry. I think one reason we receive these questions is that we have always, up-front explained this part of our membership agreement to our prospective members, while other companies do not.
What other companies typically say is that they will pay for expenses for cases of “self defense,” but without the explanation that they will need details of the incident to be convinced that there is a reasonable case to be made for self defense. If you have one of these other policies, read the fine print very carefully, and if you’re confused by the language of the contract, ask questions.
With the above in mind, just how does the Network make the decision to fund after being convinced that the act by the member was a legitimate act of self defense?
First, we routinely receive a phone call, either at our office during regular business hours or on the “Boots on the Ground Phone” if coming during non-business hours. For those not familiar with the “Boots on the Ground Phone” reference, it is my personal cell phone, where I either answer directly or if I cannot get to the phone while it is ringing, will call back as quickly as possible. During normal business hours, of course, we take the call at the office number.
If the Member is in Custody
In either event, the first question asked is, “Are you incarcerated?” If so, I explain that we do not want to discuss the incident beyond asking if this was a self-defense incident. The exception to this is if the jail personnel allows you to use your personal cell phone, which was the situation in our last member-involved shooting. At this point, what you need is use of a non-recorded phone to call and/or arrange for legal representation. This is one of the reasons it is vital that you find a local attorney and get his or her phone number, so you could make such a call. In the majority of the Network’s cases, however, our members have not had an attorney pre-selected, so I get to work helping the member find an attorney.
Once the Network locates an attorney who is able to immediately start work on your case, we hire them to do a cursory investigation of the incident. These efforts include talking to the member and to the police and possibly sending an investigator out to gather information. During this phase, I will get information from the attorney which leads me to believe the situation was a legitimate act of self defense. With that hurdle being cleared, the member will become the client of the attorney. The attorney will have the member sign a representation agreement.
This way of doing business protects our member’s rights regarding self-incrimination. You see, a statement made against a person’s self-interest made to a third person is admissible evidence in court, as an exception to the hearsay rule. Typically, the court will not allow a witness to tell in open court what the person said to a third person, because that evidence is deemed unreliable. However, if a person makes a statement that would likely lead to a conviction, the courts have decided that statement would be admissible, because for a person to make a statement against their own interests, the belief is that it likely would be truthful.
Okay, that covers what would happen if the member has been arrested and is being held in jail.
Arrested, but Not in Custody
Several times a member has been involved in an incident and they have invoked Massad Ayoob’s 5-point checklist as to what to tell the police after a shooting. To remind the readers, it is as follows:
- Establish the active dynamic, by telling police what the person was doing at the time you shot him. Meaning, “he was going to rape me” in the case of an attempted rape.
- Advise the police you will sign the complaint. While in many states this advice would hold true, other states do not have this process. They will take a statement from you verbally, and at that time you explain you will be happy to go to court and be a witness if necessary. Do not sign any witness statements before you get representation from an attorney.
- Point out evidence. While the scene is being investigated, make sure the police see and record any evidence which establishes that you were the victim of the crime. If, for example, the medical first responders kicked shell casings around, the police should know that. If you saw witnesses take any evidence from the scene (like a knife that was used in a robbery attempt), make sure police know that.
- Point out witnesses. While folks like to stick around and watch what happens, at some point bystanders may decide to leave (for whatever reason). If you know that someone saw what happened, make sure the police know who was present during the incident.
- Ask for representation before going further. You have been a good witness as is expected from responsible members of society, but before you commit to written or video statements, you must make sure you have legal counsel.
NOTE: For a full description of Ayoob’s Five point checklist, see https://dailycaller.com/2017/03/20/massad-ayoob-5-things-to-know-after-a-defensive-shooting/
At some point following your first interaction with police, you should be able to contact your attorney. If you have pre-selected your attorney, great. If not, then phone the Network and we get to work finding an attorney for you. We will access our list of Network Affiliated attorneys, and if we don’t find one that way, I will consult the attorney resource of the National Association of Criminal Defense Lawyers, of which I am a member. This work will be done initially by phone because the major driving force is to accomplish connecting our member with an attorney with all possible speed. We want an attorney for you as fast as possible.
The need to hire an attorney on behalf of a member returns us to the original question – what facts do I need to know before I can pay an attorney to represent you? Before we agree to assist a member, I will want to know some facts about the incident. I will want to make sure the member was not the initial aggressor. Even if you were legitimately in fear for your life, if you started the altercation, you will not be able to claim self defense at trial. I will also want to know what caused you to fear for your life (basically what you would or should have told the police when following Ayoob’s five point check list).
That is the only information I will want to know. The reason I do not want to get involved with knowing additional facts about the case, is that by hearing your statements about the incident, I become a possible witness if you told me things that would likely result in your conviction in court. We, of course, exercise all caution to avoid this, so by telling me only the basic elements of what happened – elements you will likely need to tell the jury anyway to establish your innocence – the peril of you telling me what happened is vastly over-shadowed by the benefit of making sure you have good legal representation, which requires gathering only the limited information we’ve discussed here.
By following these guidelines, I am able to ensure that Network resources (the Legal Defense Fund) aren’t spent defending persons who were not involved in legitimate self defense.
Boots on the Ground
In the event you or the Network cannot find an attorney who you are comfortable representing you (remember you hire the attorney, the Network just pays the bill), I will get on an airplane or drive to your location and begin the process of finding counsel or I will send a designated representative to help. We have not had to do this yet, as our resources have been able to lead us to good legal representation for our members.
Role of the Advisory Board
We have several of the top experts in the country on our Advisory Board (see https://armedcitizensnetwork.org/defensefund/advisory-board). While our Advisory Board helps grow the Network through their association with us, occasionally they will serve as a sounding board for cases where I am not comfortable making the funding decision alone. When that situation presents itself, I will run the case by one or two members to get their input and on one occasion, we ran it by the entire board. That’s the exception, though, not the rule: when the decision to fund is made, I am the person ultimately responsible for that decision.
I sincerely hope this article serves as a complete explanation as to how we make the decision to fund the legal defense of a member-involved self-defense incident. While it sounds somewhat convoluted, in reality it works well and we fulfill our commitment to our members, while ensuring we are not funding criminal acts of assault or murder.
To read more of this month's journal, please click here.