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Managing the 9-1-1 Call
An interview with Massad Ayoob
by Gila Hayes
A surprising number of pleas for charitable assistance that come in to the Network office begins: “I fought off the attacker, got away and went home. Later, the police came and arrested me.” In other words, an altercation ensued, the caller escaped, and someone else called police and gave their version of events, implicating the intended victim, who is later utterly shocked when they are charged with assault.
I’m surprised at how many people fail to report a crime against them, apparently deciding that when the fight ended they bore no obligation to justify their actions. Looking at their mistake sympathetically, though, I detect a fear of authority so deep that they run away from law enforcement as well as from their attacker. It is true that police may well arrest all participants in a fight until they determine who willingly participated. The defender walks a fine line, needing to assure accuracy in any reports given law enforcement, from the first call to the dispatch center through statements made to investigators, all of which must be accurate but succinct. It is, perhaps, a misguided attempt to mitigate this exposure that has caused some to suggest that calling police after defending yourself is too risky.
Concerned that armed citizens are being confused by warnings about self-incrimination, I asked Massad Ayoob, a leader in citizen education about post-incident issues, for guidance about reporting self-defense incidents to law enforcement. We switch now to a Q & A format to most accurately share Ayoob’s advice with our readers.
eJournal: We’re hearing arguments both for and against calling the police after defending yourself. Some propose that the very call to 9-1-1 provides a basis for criminal charges against you, but we’ve always reasoned that you are not calling to report that you committed a crime but that a crime was committed against you! These conflicting opinions have many confused, so I’d like to explore this and related issues with you, hoping that your long experience working in the court system can shed the light of reality on this concern.
Photo: Massad Ayoob, internationally recognized trainer, and member of the Network's Advisory Board.
Imagine, then, that I’ve pointed my handgun at an assailant, stopped the assault, and gotten to a place of safety. In your opinion, should I call 9-1-1 now that the danger is past? Why?
Ayoob: I’d call 9-1-1 immediately. We’ve seen case after case where the bad guy didn’t go with the armed citizen’s fantasy script to run off wetting his pants. Instead, he left the scene, called in, made up a story where you were the one that attacked him, and HE got to be the complainant.
The criminal justice system is geared on the assumption that whoever made the original complaint is the victim and whomever they are complaining about is the suspect, the person of interest, and the perpetrator. You have basically let him subsume your identity. The failure to call in, and then when you leave the scene, essentially is seen as flight equals guilt.
The assumption is that you left out of consciousness of guilt and it is a very uphill fight to convince a jury otherwise. The jury figures that if they were attacked by someone so violent that they had to pull a gun on them, they most certainly would have called the police and if you didn’t, that sounds like, well, perpetrators don’t call the police; victims call the police. The other guy called the police, so he must be the victim and you must be the perpetrator.
eJournal: Going back a line or two, you mention leaving the scene, which makes me think my example of getting to safety and then calling police is in the wrong order.
Ayoob: Call immediately! You are literally in a race to the telephone!
eJournal: Our first example was of using a firearm to deter a crime. Does your answer change if deterrence was not possible and shooting the assailant was the only way to survive?
Ayoob: It is all the more important now to immediately call in. Basically, I would give my location, and I would then state, “A man attacked me. The suspect is down. We need an ambulance and police officers here.” The failure to call for an ambulance after you have inflicted one or more gunshot wounds is seen as absolute, cold-blooded lack of care. It is seen by the law as deliberate indifference and arguably even depraved indifference to human life.
eJournal: Your term “indifference” makes me think that the macro issue is society’s expectation that if we harm another member of society, we will behave in a prescribed fashion, kind of like not fleeing the scene of an accident. What does society expect of armed citizens?
Ayoob: They think if they saw someone shot, they would pull out a cell phone and call for police and ambulance. When you do not do that, and you were literally the first to know he was shot or he was about to be shot, it is seen as, “OK, what was it that you had to hide? Why did you leave that poor man to possibly bleed to death?”
Now, certainly, I would not expect someone to rush forward to give them first aid. In fact, I would recommend that you not.
You are probably the only armed person at the scene who can contain him if his violence renews, and your duty to others, including yourself, for safety, exceeds your duty to a criminal whose actions were so violent that they forced you to shoot.
That said, simple humanity says, “Call in!” What else are we going to be doing? Calling our lawyer? Having a beer? Heading home and hoping nobody noticed? Those are the acts of somebody who has consciousness of guilt and can expect to be so perceived by a jury of their peers.
eJournal: Aren’t 9-1-1 operators trained to get details from callers? In your experience, what kinds of information are they gathering, and why?
Ayoob: They will be asking, “Do you have a weapon? Is there another weapon at the scene? Are there other perpetrators?” To those questions, I would answer, “Yes, my weapon has been secured in my holster.” I would have given my description by now, so I am not “a man with a gun” when the cops get there.
They will be wanting to ask what happened, and frankly, while I understand why they do that, it is a very poor time to be giving a narrative. You are literally still in danger. Until the man you had to shoot is secured, you and others are still in danger. You have to remain alert to any other perpetrators that might be present and are not yet known to you. I think that supersedes any immediacy of giving exact details to the dispatcher.
eJournal: How can we best communicate those priorities to an insistent dispatcher?
Ayoob: I would say to the dispatcher, “Sir, I will answer all of the officers’ questions. Right now we have an active danger scene here. I’m holding the phone, I’m watching what is happening here, and I’m going to leave the phone on so you can record.”
eJournal: I’ve heard of lengthy 9-1-1 recordings used in court against a shooter. It seems we have competing concerns: leaving the line open to relay vital information between the scene and responding officers, weighed against inaccurately answering questions. How do you balance the two?
Ayoob: I would say, “Ma’am, I don’t have time to discuss it now. We have an active danger scene here. I will remain on the line.”
eJournal: And now, with that line open and presumably making an audio recording of anything yet to transpire, isn’t that recording cause for concern?
Ayoob: The whole thing causes me concern! It is never going to be perfect the way we would like or the way a scriptwriter would like. We are going to be multi-tasking. We have tremendous dangers of a mistaken identity situation. I do not want to be distracted.
eJournal: Do you think all of those and other dangers counterbalance leaving the phone connection open? What if the fight resumes and the armed citizen screams, “If you get up, I’m going to kill you, you evil *&%#!”
Ayoob: Anyone stupid enough to do that belongs in prison anyway so it all serves justice. Anybody who thinks they are that unable to control themselves probably shouldn’t be carrying a gun to begin with.
eJournal: You’ve summed up one of the puzzles that are mentioned when people argue about whether they should talk to police at all after an incident. That argument claims we’re so stupid that we can’t manage the aftermath.
Ayoob: It is a hypocritical self-contradiction. The assumption is that you were the cool, brave warrior sheepdog who was able to beat a professional criminal at his own game, but now suddenly, your brains are going to turn into a steaming pile of feces. It simply does not work that way. The sort of person capable of handling the emergency is just as capable of handling the next emergency, which is going to be the aftermath.
eJournal: That is the clearest explanation I’ve ever heard! If you were prepared for the fight; you can be prepared for the aftermath. What preparations can we make to avoid babbling to the dispatcher?
Ayoob: Simply the self discipline that you are going to watch the scene. You are still in danger until it has been determined otherwise. I would have the gun holstered by now, hand near or on the holstered weapon, so if the officer approaches me suddenly or yells, “Drop the gun!” I can say, “Officer, I’m slowly raising my empty hands now.” You might want to put the cell phone in a breast pocket. While that may muffle the sound a little, it would leave the other hand free.
eJournal: Then when you put up your hands, they really are empty, not holding something dark colored.
Ayoob: And you won’t be shot for holding a cell phone that looked like a weapon in the dark.
eJournal: Could we examine the extreme opposite and discuss advice to not call 9-1-1 at all? Instead of conjecture, it would be great to have some actual examples from which we could learn. Can you think of examples of people who did not call after a use of force incident and how did that work out for them?
Ayoob: Yes, there was the Herman Kreutzer case. Basically, Kreutzer was a dad whose daughter was in a very abusive relationship with her husband. He and his wife took her back into the house. The abusive son-in-law came by the house and violently attacked him. He actually ended up with the guy choking him and he had to bite part of the guy’s finger off to make the guy stop attacking him.
As you might imagine, the family was absolutely terrified of this guy so they started arming themselves when they were on their property. The violent son-in-law comes back and pretends to have a gun inside an arm sling that he’s been wearing since his finger was bitten off. He says he is going to kidnap the daughter and do some other horrible things. Herman Kreutzer pulls a gun and shoots him. As the guy was dying, his last words were, “I guess I made a mistake.” Truer words were never spoken.
Kreutzer panicked when he looked for the gun and found out he didn’t have one. Like so many people who don’t understand the system, he figures, “Oh, my God, I’ve shot an unarmed man. They are going to hang me! What can I do?” He convinces his son to help him move the body and then he and his wife take off on an unscheduled vacation. Well, the body is found, and when somebody sticks a news cam in his face, he says, “I don’t know a thing about it.” When he finally admits it and tells the true story, he is seen as the little boy who cried wolf.
He was convicted of murder. There is no doubt in my mind if he had immediately called the police, who had a record of all the prior history of extreme violence of the deceased, they would have said, “Geez, dude, we are glad you had a gun.” It might have pro forma gone before a grand jury, which almost certainly would have returned no true bill.
Advice not to call police is given out of ignorance by people who do not understand the system. They take a sound bite from a criminal defense lawyer who says, “Don’t say nothin’.” Well, a high 90th percentile of criminal defense clients are guilty. The best advice for guilty people is to say nothing! They’re either going to tell a lie that they will get caught in that will hang them or give an inculpatory statement that will hang them. Reflexively, the defense attorney gives that very same advice to the very rare client who may someday end up in a self-defense shooting and be wrongfully accused. Essentially, you are getting guilty man’s advice from a guilty man’s lawyer and so you are going to end up with a guilty man’s verdict.
eJournal: Are you aware of any times that someone who acted justifiably in self defense called his or her attorney first? You know, that strategy has been recommended, and I’d like to know if it has ever happened and how it worked out.
Ayoob: See State of Florida vs. Tim Alessi. He went to prison. Alessi was going through a divorce with some acrimony involved. He stopped by the house to talk to his wife and pick up his son with whom he was going to spend some time. His wife’s brother, who had a particular hatred for him, was there. Let me explain how the people were arrayed: Mrs. Alessi is slightly off to the side facing her husband. Behind her, more squarely facing the husband is the brother.
The brother pulls a 2-inch .38 and swings it up toward Alessi, who is a career police officer. He is carrying an off-duty gun and he reflexively did what he had been trained to do. He drew and instantly fired multiple shots.
The wife, whose back is to the brother, obviously could not have seen his gun come up. All she could have possibly seen was Tim drawing a gun on her brother. She screams something like, “No!” and she dives between Tim and the brother as Tim begins pulling the trigger. One of the bullets struck her in the chest and killed her; the other two struck and neutralized the brother.
Tim, in a state of fugue, because this had literally been zero-to-sixty in one second, stumbles out of the house and drives away. He can see his wife is dead and there is nothing he can do for her. He comes to his senses and calls his attorney, who says, “Hide the gun, and then go turn yourself in and I’ll come to the station.” It was an incredibly stupid thing for the attorney to say, but then, the attorney also said, “Turn yourself in but don’t say anything until I get there.” The attorney does not get there for literally a matter of days. By that time, the thing is already rolling and Tim wound up convicted of murder.
We were able to overturn the conviction on appeal, but by that time, he had run out of money and rather than trust himself to a public defender–which I certainly would have, had he consulted with me–he was like too many cops who have the sense that public defenders are so overburdened, and they aren’t Perry Mason, and so he ended up accepting a plea bargain for manslaughter which cost him more time in prison.
The brother who survived and was the star witness said, “I went to the bedroom and got the gun after he shot me, but Tim had left.”
Well, the guy was bleeding like a stuck hog, and the blood evidence shows it, but there was not a drop of blood between the shooting scene and the bedroom, where he said he retrieved the gun.
The little boy, who the judge did not allow to testify at trial, said, “My uncle pulled a gun on my daddy and my daddy shot him.” The jury never heard that because the judge would not allow the four-year-old to testify.
Had Tim simply called from the scene and told his story, proper reconstruction would have shown what happened and shown who was telling the truth. It would have been shown to be a justifiable shooting of the brother-in-law and the death of his wife a terrible, unanticipatable tragedy. He did not. He took the insane advice to ditch the gun, and the whole “flight-equals-guilt” thing kicked in. He was seen as hiding evidence, he was seen as guilty, and nature took its course.
eJournal: This is one of those cases that people use to argue that our post-emergency mental state is unreliable. You said Tim was in a fugue, and that brings us back to being trained and being prepared for the aftermath, just like preparation for self defense. My question is this: after peering over the precipice of death, do you believe we can manage the 9-1-1 call and manage the immediate interaction with responding officers, all of which an attorney is unlikely to arrive in time to handle?
Ayoob: If you are on the precipice of death and you can outdraw the guy who is about to murder you and shoot him, that tells me you can handle yourself well enough on the precipice to do what you have mentally prepared yourself to do. If that had been an on-duty shooting, there is no doubt in my mind Tim would have simply called in with the appropriate radio code, said, “I’ve been in a shooting,” and it would have been handled appropriately.
I don’t think he had ever perceived that he would be in a situation where someone he knew–a member of the family–would pull a gun on him, and nothing could have prepared him for his wife misunderstanding the situation and jumping in front of the gun at the very second he is pulling the trigger.
If you don’t have the plan already on file for the computer to look up, that computer inside your head goes looking for the solution to the problem and it comes up, “No file found.”
eJournal: This has been a very sobering conversation. Do you have any final words of advice, anything to add that we haven’t discussed?
Ayoob: Yes, I do. You definitely need to call 9-1-1. I’ve heard the advice to call your lawyer and have your lawyer call the police. All you have to do is ask your lawyer right now. “Hey, is that a good plan?” and your lawyer will say, “What? Are you nuts? Do you want me to be your lawyer or not?” See, if you involve the attorney in making the emergency call, he becomes a witness and then he cannot be your advocate. Also, in doing that, you are establishing from the ground up, “I care more about keeping myself out of trouble than I care about this man bleeding to death on the sidewalk.” Once again, we are back to deliberate indifference, and a pattern of behavior that is NOT consistent with the righteous armed citizen who has used firearms in self defense.
eJournal: Those are very convincing points. Well, Mas, I appreciate you taking the time after a long day of teaching to share your knowledge with us. I believe these are points about which armed citizens need to think long and hard, and you’ve given us some true-life examples to show why what we do in the aftermath is so terribly important. On behalf of all of us at the Network, thank you.
[End of article.
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The Power of One
by Marty Hayes
What does the future hold for the Network? Well, to answer that question, we should first take a brief look at the past.
Started in 2008, the Network has grown from an idea, into a vital membership organization of over 5,700 members. We have produced 57 monthly editions of the eJournal (there is some really good reading there, folks) and have assisted two of our members in court proceedings after acts of self defense.
We have also amassed a Legal Defense Fund, which is very close to going over the $200,000 mark, funded primarily through member dues, and secondarily through corporate sponsorships and member contributions.
We have also helped educate over 100,000 gun owners regarding the laws concerning use of deadly force in self defense, through our 24-page booklet What Every Gun Owner Needs to Know About Self-Defense Law. And, this year, we started offering Continuing Legal Education training courses for attorneys, instructors and Network members.
So, that is where we are presently. Now, allow me the luxury of dreaming a little and discussing what the future might hold for the Network. In no particular order, I can imagine the following as part of our long-range plan:
- A membership of over 100,000 law-abiding gun owners, all committed to responsible gun ownership and use, who are well educated, well trained and capable of defending themselves and their families if attacked, as well as capable of defending themselves (with our help, of course) in court, if necessary.
- A Legal Defense Fund of over one million dollars, which would not only be used for helping a member with a legal issue, but I also dream of perhaps helping with bail money and living expenses if necessary (such as is required for George Zimmerman).
- Aggressive growth of our public educational efforts, currently led by our Network Affiliated Instructors and Network Affiliated Gun Stores, who distribute the Network's booklet and brochure, as well as telling their students and customers why Network membership is important. A structure that will support broader distribution of the booklet is just now in the formative stages, so I'm not at liberty to discuss that until more of the details are clear. I just want to let you know that we are committed to becoming the leader in use of force and aftermath education for armed citizens.
- Establishment of a nationwide “Self-Defense Bar,” which would include member attorneys from all across the nation, all of whom are committed to and educated in how to defend self-defense cases.
- Yearly Armed Citizens’ Legal Defense Network member gatherings, moved around the country to offer in-person training for our members in use of force in self defense.
- A newsstand publication devoted exclusively to self-defense issues.
- Our own cable TV show, which could reach millions of viewers annually.
- Our own line of Network-approved ammunition, holsters and self-defense firearms, all of which would be predicated on reliability, effectiveness and court defensibility.
- Regional training schools, with courses offered by Network-certified instructors, to meet the demand for responsible, cost effective firearms and self-defense training.
- Our own law firm, available to handle cases for our members in all 50 states, including the ability to be hired to handle other self-defense cases for non-members.
Kind of an interesting list of ideas, isn’t it? But, I frankly see each and every one as imminently doable. Obviously though, to accomplish this dream list of topics, the Network would need to grow, and that is where YOU come in.
I would LOVE to see the Network as large and as influential as it would be if this dream list were to come true. The ONLY thing that would prevent us from attaining this is membership numbers. Just think about this idea for a minute. If each of our 5,000 plus members recruited just ONE MORE member before the end of the year, we would have more than 10,000 members in the Network. Then, if each member recruited just ONE NEW member in 2013, we would have 20,000 members by the end of 2013. (You see where this is going, don’t you?) Lets keep playing with the numbers. If each of the 20,000 members in 2014 recruited just ONE MORE member that year, by the start of 2015, the Network would have over 40,000 members, and half of my dream list would already be accomplished. Then, in just two more years, Network membership would stand at over 100,000 members, and with that financial power, we could then accomplish everything on the list, and likely much more.
Let’s call it the POWER OF ONE. Each person in the Network just has to recruit one new member a year. That’s all. In five years, we would then have accomplished everything on the above list. Seriously, every member reading this month’s President’s Message knows one person who could benefit from membership in the Network. Perhaps a close shooting buddy, a daughter or son, or a father or mother.
Why not buy them a membership? The effect on membership numbers would be the same as recruiting, and in five years, if both the giver and recipient recognized the value of their Network membership and both renewed, and each bought a membership for another person, we would reach 100,000 members in just five years.
Folks, we have already done the hard work! When Vincent, Gila and I took our own money and pooled it to start the Network, that was the first and hardest step. Getting the first 500 people who joined the Network to have faith and trust in us to follow through with what we have promised (I hope you realize we have done just that), well, that was the next hardest thing to accomplish. But, we did it. To convince the hundreds of attorneys and instructors that affiliating with the Network is worthwhile, that we were worthy of their trust, well, that was not easy, either. But, we did that, too. That was the hard work. Then, once the structure was in place with the help of the financial support of our increasing number of members, the work has been easier. Sure, there is a heck of a lot MORE work, but none is impossible, just time consuming.
Vincent, Gila and I started this network because WE personally wanted to be a part of something like the Network, and it didn’t exist. When you signed up as a member, you must have understood that being a part of this Network had real value, and with the very strong renewal rates we enjoy, we know that you still appreciate being a part of the Network.
With that in mind, can you help the Network grow? Can you recruit just ONE new member before the year is out? Even if it means buying a membership for a family member or friend? If you do, you will see amazing things happen to the Network, and the great part of it is that your membership will also be worth so much more.
Thanks for sharing my dreams.
[End of Article.
To the Editor:
I read an interesting article on The Police Studies Council web site (http://www.theppsc.org/) that I believe might interest our community. The Death by Defiance article was published in Answering the Call, Summer 2008. The full research article is available from the same web site at Read Ground-Breaking PPSC Deadly Force Study.
The article regards the possibility of a Police Officer misinterpreting perceived defiant behavior as a lethal threat. I read the article with the perspective of more information on dealing with armed LEO or other persons for that matter. This study and other articles on this web site might be of interest to our community members.
Thank you for your note and for sharing the interesting references.
The article by Tom Aveni makes an excellent companion piece to our December 2011 lead article about interacting with police. Aveni has the science, and the gentlemen contributing their experience to the December 2011 journal have the street time! Both, though, are dealing with the behavioral cues that police may see as initiating a threat, though that is not always the suspect's intentions. Those dangers were much in our minds when we published that December article.
I appreciate you bringing this additional information to our attention. Other members who read useful material on armed self defense and aftermath issues are encouraged to share the references with us, as well. Thank you!
To the Editor:
Regarding the pocket carry discussion in recent letter to the Editor, another option would be using tee shirt with gun holder sewn into it under a fake button shirt with zipper or magnet closure, which are all readily available on the market.
I'd be interested in any input regarding this type of carry in future or past newsletter articles.
Fred Zentgraf, Sr.
Thank you for contributing to the discussion started by Tom Givens’ recommendations of decent-sized handguns in the July edition of this journal. There are many, many alternatives to conventional holsters, including the tee shirt type you mention. All require dedicated practice to assure a quick, smooth draw. Of course, the belt-holstered handgun also requires practice. A lot of training organizations require students to use conventional belt holsters for formal training, so the armed citizen using a non-traditional holster will need to put in their own practice time. I’d suggest starting with a considerable amount of dry fire practice, to smooth out any glitches in the use of the tee shirt holster, augmented by live fire practice during which the shooter must pay exacting attention to safety, since many of the non-traditional holsters do not accommodate easy holstering.
[End of letters.
With the generous help of our Network Affiliated Attorneys, this column helps our members understand the world our affiliated attorneys work in, and demystifies various aspects of the legal system for our readers. Recently, we asked our affiliated attorneys:
If a Network member is involved in a self-defense incident, is charged with a crime and goes to trial, how likely is it that the prosecution will try to spin belonging to the Network as planning to shoot someone? What response would you make if you were defending a Network member and opposing counsel tried to discredit your client that way?
Schaffer, Black and Flores PC
129 W. Patrick Street #5Frederick, MD 21701
I think it is highly likely that this could become an issue. After 22 years in criminal law I would never put it past that certain subset of “win at all cost” prosecutors to spin anything they can to their advantage. We have all seen how a collection of guns becomes “an arsenal” or “a cache of weapons.” It is something that all Network attorneys should be prepared to counter at trial.
The defense would be to prevent the prosecution from even being able to raise the issue in the first place. Maryland Rule 5-411, which applies to both civil and criminal trials, states in part that “evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Now ACLDN makes it abundantly clear that they are not an insurance plan but I think that an analogy could be drawn and strongly argued to use this rule to preclude the prosecution from even raising the issue in the first place. The spirit of the rule is that a person should not be harmed for taking proper steps to protect themselves financially.
Should this argument not bear fruit with the judge then one must be prepared to explain the membership of your client in the ACLDN to the jury. At argument before the jury I again think the insurance analogy would be useful. After all just because you have car insurance does not mean that you plan to crash your car.
I also think it would be important to highlight the educational aspect of the Network.
During the trial if the other side raised the issue of membership, I would highlight the DVDs and other educational materials provided by the Network to show that the Network is strongly educational and my client took advantage of these opportunities to minimize the possibility of an incorrect response.
If this was a criminal case it would certainly be worth cross examining any law enforcement officers as to what training requirements they have and why they train. No officer will say on the stand that they train to make it more likely they will shoot someone. I believe that with the proper foresight and preparation you can paint your client’s membership in the Network in a positive light and turn it into a plus to show your client as a thoughtful and prepared individual.
Robert S. Apgood
2400 NW 80th St., #130, Seattle, WA 98117
I tend to attempt to analogize these types of questions to scenarios that the “average” juror understands. Aside from the examination and cross-examination repartee we employ in pursuit or attack of witness testimony, I suggest that the use of an argument that appeals to the juror’s own understanding helps to put the question/answer in a perspective that builds on their own life experiences. Medical insurance, theft insurance, homeowners liability insurance, automobile liability and collision insurance, and fire insurance are all types of protection that are not foreign to jurors, nor are they considered as indicative of a “heinous” intent on the part of the acquirer.
We don’t acquire medical insurance coverage on the premise that we intend to suffer life-threatening injury or perpetrate a fraud on the insurer or innocent bystander. No. We seek this coverage “in case” some devastating occurrence is inflicted on us or by us and we need to protect our homes and families from financial ruin that we might otherwise suffer as a result of the sheer costs associated with medical emergencies or infirm health. It is because of this potential financial devastation (or foolhardiness in tempting fate for lack of protection) that we virtually DEMAND this coverage from our employers or from the government.
We don’t acquire theft insurance coverage on the premise that we intend to have our homes or vehicles invaded and our property illegally taken. Nor do we acquire it for the purpose of “staging” a theft to perpetrate a fraud on an insurer. We seek this coverage “in case” our homes and/or vehicles are violated and we need to protect our families from financial damage that we might otherwise suffer as a result of that theft.
We don’t acquire homeowner’s liability coverage on the premise that we intend to have a friend or family member intentionally slip and fall or otherwise suffer grievous injury in order to realize an ill-gotten windfall. We seek this coverage “in case” some devastating occurrence happens and we need to protect our homes and families from financial ruin that might otherwise result from a legal claim (legitimate or otherwise) being levied against us.
If we don’t own a home, we don’t need this coverage (although we sorely tempt fate by not getting the equivalent renter’s insurance coverage).
We don’t acquire automobile liability and collision coverage on the premise that we intend to intentionally strike a person or object with our automobiles. We seek this coverage “in case” some devastating occurrence happens and we need to protect our homes and families from financial ruin that might otherwise result from a legal claim being levied against us, or simply need to protect ourselves from the loss incumbent with an automobile collision, whether our fault or not. If we don’t own or lease an automobile, we don’t need this form of protection and we waste our monies by acquiring it.
We don’t acquire fire insurance on the premise that we intend to set our homes afire in order to recover fire-loss damages. We seek this coverage “in case” our homes are damaged or destroyed and we need to protect our families from financial ruin and being forced to live on the streets should we suffer such a loss.
If we don’t own a home, we don’t require this coverage and so we don’t acquire it. If we do own a home, we are foolhardy for not getting it.
In short, we acquire different types of insurance coverage to protect us from financial loss in the event that we suffer such an unexpected loss. Indeed, many of us who are forced into a situation where we need legal representation at some time or another wonder why insurance coverage for legal representation is not as prevalent as coverage for medical, theft, liability, collision and fire. It is not unknown for some people to purchase “prepaid legal insurance” coverage in the event that we DO need this form of financial protection. However, legal representation insurance coverage is not a “common” need, nor is it a need that affects a fundamental aspect of virtually everyone’s lives. Consequently, there is not an overwhelming demand for this form of protection and, as such, insurers do not generally offer this protection (ostensibly because there is not a large enough market for it to warrant a business decision to offer it on a general basis). Although some business liability policies DO include this type of protection, it is the exception rather than the rule (and frequently comes at a significant premium cost).
In sum, ALL insurance is some form of protection, and acquisition of that protection does not imply an intended future bad act or other fraudulent intent. As such, someone who lawfully possesses firearms and may need one in the event of a life-threatening occurrence (such as shooting an invader in the family home), is exercising fiscal prudence by acquiring insurance that is designed to make whole a loss (read: legal fees) resulting from the exercise of that right.
Editor’s Note: While it is important not to confuse Network membership benefits with insurance, the analogy is certainly apt. Responses from our Network affiliated attorneys to this particular question were numerous. We will wrap up the responses to this question in the October edition of the journal, then move on to another line of inquiry the following month.
[End of Article.
By Marian Hoy
ISBN 13: 978-1-938297-74-8 (MOBI)
ISBN 13: 978-1-938297-75-5 (ePub)
Reviewed by Gila Hayes
I’ve read several books on prosecutorial misconduct in years past, and was disappointed when all focused on abuses at the Federal level. It seems to me that the armed citizen has far more to fear locally. This spring, some of what I’d been looking for was published electronically by retired police officer, Marian Hoy, in her book about the problem of false accusations at the local level.
Why does the subject concern us? In Hoy’s words, citizens should “Care, because the next person a peace officer erroneously arrests could be your son or daughter, or your husband, childhood friend or you…care, because when you are jailed, your life as you knew it will unalterably change.” Citing the Innocence Project’s wins (http://www.innocenceproject.org), which she says stands at more than 300 inmates “proven innocent and exonerated,” Hoy shows that miscarriages of justice really do occur. Falsely Accused does not discuss many specific cases, addressing instead why and how police accuse and prosecutors convict innocent citizens.
Overworked police departments encourage taking short cuts, and the details that might reveal who really committed the crime are never investigated, Hoy explains, writing, “The urgent and essential sense of necessity that pushes an officer to solve a case also blurs the means and the results he uses.” She details how hard it is to admit to a mistake and release a suspect once police realize their error. “Once dishonorable peace officers and prosecutors target a person as being the guilty suspect they rarely will admit their mistake, because they believe that admitting that they are wrong is a threat to their effectiveness as an officer and prosecutor,” she accuses.
Hoy describes the many stresses that can turn an idealistic officer into a sloppy, uninspired one, who turns in incomplete investigations, with the result that the responsible criminal may never be identified while an innocent person is punished.
Facts go unverified, scientific findings are disregarded or twisted to support the arresting officer’s conclusions, evidence is ignored and phone calls or in-person interviews are never made.
By comparison, Hoy writes, “A thorough investigation requires patience, skill, intelligence and a desire to present true and complete investigations.”
Hoy’s “insider’s” view of interrogations is important to anyone believing that just doing the right thing is enough to keep them out of jail. She describes procedures used to extract confessions. “Many innocent persons have confessed to a crime which they did not commit just to escape the constant haranguing of the interrogator. We all say that we would never admit to something we didn’t do, but when one is sitting in a tiny room at a police station for 6-10 hours, with two men you don’t know, and of whom you are scared to death, who have told you no less than a thousand times that they know you did it – you will admit to anything! Many, many innocent persons have spent years in prison because of overzealous, battering, and bullying peace officers who were convinced of the person’s guilt.”
No citizen should be interrogated without an attorney present, Hoy continues. She cites the rights outlined in the Miranda warning, affirmed by the 1986 Supreme Court ruling in Michigan v. Jackson (475 U.S. 625 ), but notes that the following year another case, which she does not identify, “stated when a person requests an attorney to be present the police interviewer can continue asking questions until the attorney arrives.” She advises, “If it were me, I would simply tell the officer, ‘You can ask all the question[s] you want, but I will not answer until my attorney arrives.’”
Hoy despairs for poorer defendants relying on court-appointed counsel, and she writes of attorneys sleeping during trial, being disbarred shortly after finishing a death penalty case, failing to investigate alibis or get experts to weigh in on forensic issues and missing important hearings. While we hope this is a worst-case scenario, it shows the importance of the Network’s member benefit of financial assistance to provide a skilled and aggressive attorney.
“If an arrested person has financial means and can afford even a moderately good attorney – the chances of him spending time in prison are little or none.
If the arrested person is able to hire the best attorney – the chances of him spending time in prison are almost nil,” Hoy predicts. An attorney can obtain “experts in fire investigation, firearms investigation, ballistics, crime scene analysis, voice analysis, blood DNA analysis, forensic analysis of vehicles, computers, and any minute aspect of ... the case. All of those experts cost money,” she concludes.
In detailing the steps that follow an arrest through indictment or acquittal, Hoy gives a good discussion of grand jury issues. The grand jury is intended as a “safeguard against unwarranted prosecution,” she begins. Without a grand jury indictment, serious criminal charges cannot proceed to trial, she explains, but notes how far reality falls from this ideal. Since jurors lack specialized knowledge of criminal law, they “will do exactly as the district attorney tells them,” she submits.
Hoy’s next chapter excoriates the methods by which prosecutors argue cases, including theatrics, psychological manipulation of jurors, and salting their arguments with what she calls “incendiary words” known to inflame or frighten jurors. “Terms such as monster have no specific meaning except to plant a negative seed about the defendant into the minds of the jurors,” she illustrates. She also criticizes demonstrative performances that shock the jurors, calling them “well rehearsed cheap tricks.” If cases taken to court were supported by accurate investigations, solid physical evidence, and undertaken only to punish a person proven to have committed the offense, these shenanigans would be unnecessary, she stresses.
Hoy pleads for self-actualized jurors who are not susceptible to manipulation, suggesting that some prosecutors prefer poorly educated or easily swayed jurors. “The prosecutor has more control if the people he chooses for a jury don’t have enough education to know they can challenge him,” she opines. She encourages jurors to challenge unsubstantiated conclusions presented at trial. “If the prosecutor brings it up, he must be able to prove it,” she exclaims. Often, at the end of the day, a judge may ask if jurors have any questions. Use this time to demand proof of unsupported suppositions and clarification of inexact or technical language used. Be sufficiently thick-skinned to demand answers even if the prosecutor and judge snicker, she advises, adding, “Jurors have a responsibility to verify, verify, verify!”
Why aren’t District Attorneys sanctioned when they prosecute the wrong person? Hoy asks. “There are laws for peace officers who violate the civil rights of a person, but in most states there is no penalty that states a district attorney must be held accountable.” Toward the end of Falsely Accused, Hoy cites 1963 U.S. Supreme Court case Brady v. Maryland recognizing the duty of prosecutors to disclose exculpatory evidence. In addition, she cites 42 U.S.C. § 1983 allowing citizens to sue local and state government officials for intentional violation of civil rights. Finally, she quotes a 2009 Supreme Court decision, Van de Kamp et al. v. Goldstein No 07-854, in which the Justices asserted that prosecutors do not enjoy absolute immunity when giving advice to police during a criminal investigation, when making statements to the press, or when the prosecutor is the complaining witness in support of a warrant application.
Can our courts become true seats of justice? Throughout Falsely Accused, Hoy repeatedly admonishes honest people in the criminal justice system to stand up to those who are not. Her call for police education is coupled with advice to citizens to learn about the law, too. Citizens and peace officers alike are constrained by the written law, but the citizen, instead of feeling oppressed by the law, should feel protected by it. She urges readers to monitor or sit on citizen review boards, or start one if none exists. Study your Constitutional and civil rights, and “make sure you know as much about arrest and search and seizure laws as police officers are supposed to know,” she advises.
Hoy closes Falsely Accused with a chapter identifying factors making an individual particularly vulnerable to false accusations by police. A solitary lifestyle poses particular concern. She suggests a number of precautions for those living alone to protect against false accusations, as well as simply increasing personal safety. In addition, Hoy gives advice about dealing with law enforcement during routine contacts, how to push for assistance from a police agency, and more.
Falsely Accused is only published in eBook format and can be purchased through a link at http://www.marianhoyconsultant.com/falsely_accused_order_book.htm . I fear readers will find a number of writing errors in it, and I strongly encourage reading Falsely Accused not for style but for the knowledge and underlying message.
[End of Article.
by Brady Wright
It’s been quite a month and it’s a pleasure to welcome so many new members to our ranks here at the Network. One of my favorite things is to learn how things are going with our affiliates’ businesses, classes and clients, as we all do the work of keeping folks prepared to defend themselves in this world.
One of the best parts of being the networking guy is hearing about how our affiliates help to spread the word about what we do. Our friend Phil Smith (maybe better known as Johnny Appleseed!) regularly emails to share his travels. Last month I mentioned him passing along some booklets to his barber in Massena, NY. A short time ago, when he went in for a hair cut, Phil was surprised to walk in and see the booklets on display in the shop and hear that the barber had handed out many booklets to his customers, including some women he knew who owned hand guns. Like Phil, many Network members find that it’s simple to hand people some information about something you believe in.
If you attend shooting matches or gun classes, why not take a supply of Network booklets or brochures for your fellow participants? Just before this journal’s deadline, we heard from Chris, an OH member who just recently renewed her membership and was pleased when she received the logo ball cap that goes out to second year members.
She wrote, “I’m down to only about 5-6 of the brochures you sent and would love to get another set. Especially since I have the hat to wear now and I’m sure it will generate inquiries.
Photo: When Network members renew for their second year we send them a nice, embroidered ball cap to wear at the gun club, shooting matches, and other places where gun owners gather.
Several people at the IDPA match on Sunday took brochures and I’m sure the last of my stash will be given out this weekend at an integrated concealed carry training course I’m attending. It is geared toward people who carry most/all of the time and gives them real world skills for typical confrontations while teaching that the gun is rarely the first response (usually there is some sort of physical defensive move which the course teaches). It’s given by this group: http://www.right2defend.com/”.
Thank you, Chris! We really appreciate the exposure to all those shooters, people who we would otherwise have little opportunity to reach. The more members that join the Network, the stronger the Legal Defense Fund grows. We all benefit!
Chris Zeeb in Syracuse, NE teaches a number of defensive force and firearms safety classes. After I sent him more booklets, he said, “Thanks for getting these out. Classes are going well, things did seem to slow down for the summer, but then the unfortunate shooting in Aurora CO, caused many people to think, ‘Wow, I better do something to protect myself.’ Very unfortunate something bad has to happen for folks to realize this.” Agreed, Chris. It is tragic when people are impacted by violence, when it might have been stopped much sooner with knowledge or forethought.
Steve Eichelberger wrote me to ask for a short hold on his booklet supply. It’s a great way to keep well stocked but not over-stocked on Network literature. Remember, we can provide you with any reasonable quantity of booklets and brochures, delivered at the interval that works best for you. All it takes is to call or shoot me an email!
Don Streater sent greetings from the Tidewater, in Yorktown, VA. He said, “Brady, could you send us another case of the booklets What Every Firearms Owner Needs to Know about Self Defense Law?
We continue to distribute them to our new members, to our concealed carry classes, and have them available in our clubhouse. I give a short pitch on the merits of joining at our concealed classes, and I’m going to have an ACLDN table at our September 8th swap meet with the booklets.”
Sometimes, we share news about our affiliates within the office and I got this one forwarded to me by Gila Hayes from one of our affiliated instructors in Oklahoma. “Hi Gila. I’ve been getting the pamphlet out to my students, gun show attendees, and members/visitors to my gun club, the Red Castle Gun Club. I continue to get some recognition of Marty’s name when I relate it to Best Defense TV.
But even though some folks don’t know what I’m talking about, mentioning his involvement with giving the legal opinion after the dramatized scenario seems to ‘validate’ the authenticity of the pamphlet.
I really think the cover design works. Many people’s attention locks onto the cover and some want to pick it up, but are a bit reluctant. Of course, if I notice someone looking at the pamphlet, I invite them to take it and once they’ve picked it up, I mention the Best Defense thing. One guy kinda swooped in, grabbed a pamphlet, kept on walking, and never looked back. It was almost as if he thought he was stealing it. I looked at the guy sitting at the table with me, who also noticed the surreptitious move, and we had a chuckle about it.
I have about 50 left. I’m guessing that’ll last another month. I hope you’re getting some good referrals. If you want to send another batch, I’d be happy to continue on.” The Red Castle Gun Club is billed as the “Most Complete Shooting Facility in Oklahoma.” You can call them direct at 918-582-3922 or check their very complete website at www.tulsaredcastlegunclub.com.
One of the best values of this column is that you can get to know some other members of the Network and their specialties. They are all good resources for training, information, classes and shared knowledge within the industry. When you see someone or something interesting in the column, feel free to contact that member and talk with them. Who knows what strong partnerships may come of that?
Our friend and affiliate, Jay French of CCW Breakaways, shot off a short note about the next NRA annual meeting. He said, “Hope life in the Northwest is going well for you. We’ve a recent break in the weather here in PA . . . maybe fall is coming upon us soon. Another case of booklets would be welcome soon. Just this past weekend, I started to prepare for our next NRA Show. I have another large display that needs welded together . . . and we’ll be right across the aisle from one another. See you in Houston!”
Finally, welcome aboard to our newest affiliated instructor, Michael de Bethencourt. If the name sounds familiar, it’s because he is the head of Snub Training, in Billerica, MA. Michael is one of the true stars of our industry and you’ll see why if you check out his website at www.snubtraining.com. Glad to have you with us, Michael!
Advance notice: Keep your eyes open for the reissue of our tri-fold brochure! Gila and I, with help from the rest of the team, are working through a re-write and update that will make that an even better introduction to the Network and a great tool for all of our members to use when telling others about the Network.
[End of article.
Editor’s Note: Once again, an opinion piece of such value came across my desk that instead of holding forth on some less-important topic myself, I have decided to yield the floor to another of our Affiliated Attorneys, Mitchell Lake, of CT.
Lake was among the first Network Affiliated Attorneys to extend support to the Armed Citizens’ Legal Defense Network, Inc. in 2008 when we were first getting started. We appreciate his continuing participation, as well as his straight-to-the point advice, the sting of which he often leavens with his own sarcastic brand of humor. If plagued by any of the situations he describes, we hope his suggested solutions may provide direction to help the reader resolve problems before they explode.
by Mitchell Lake, Esq.
Most people, when asked to visualize a situation in which they would have to use force, imagine a very “clear cut” situation. An armed robbery, assault, or home invasion, something like that. However, these incidents are relatively clear cut.
I’m not minimizing the seriousness of the situation and the need to be aware for pitfalls and perils the aftermath brings, such as what happens if your assailant was turning and your perfect center chest shot happens to impact between his shoulder blades, but barring that and obvious problems such as long, rambling, confused statements which leave the situation so confused to the point the police now feel they have to charge you with a crime or “You don’t look so bad, here’s another” (Mr. Goetz) these situations tend to be, more likely than not, well understood by the police and the courts.
–Someone attacked you without provocation.
–You used force to defend yourself.
–The force is articulated and, if the explanation of the force used is sufficient per the situation, the matter is closed in the eyes of the criminal court.
If not, you go to trial and do the court dance, which, as Massad Ayoob quotes John D. McDonald, saying, “Trial law is the last true blood sport.”
Not So Simple
Real life, however, has a way of seeping into people's experiences and things are not always so simple. The incident itself may be clear cut. However, the incident will not be the only thing looked at in a use of force situation in which someone is killed or severely injured.
These four factors (there are more…) are more than sufficient to muddle almost any situation involving the use of force:
–Custody issues related to kids.
If one factor is present, it can drastically complicate a situation; if two or more are present, you have just entered the ancient Chinese curse, “May you live in interesting times.”
These are factors which people deal with on a daily basis that may precipitate a use of force situation. However, most people are still stuck in the paradigm of preparing for a mugging in a dark parking lot, all the while ignoring the possible pressure cookers in daily life, which can explode and cause a mess, not to mention injury.
Money: You owe someone money; someone owes you money; maybe you just are broke, being foreclosed on and it’s making you short tempered. Regardless, understand its effect on the relationships and interactions you have with people. Maybe you need some help. Maybe you need a Chapter 7 bankruptcy to eliminate your debt (call me). Maybe you need a job or a new job.
Whatever the “bling” issue is, when it comes to “bang” it can put a whole new spin on the case and can be a factor which makes a self-defense incident look a lot like manslaughter.
Sex: You know where this leads…marriage, divorce and child support payments. If it wasn’t for people doing stupid stuff to get some or stupid stuff after having got some, the criminal docket would be a boring place and I wouldn’t have money to go to...OK, not mentioning that establishment…moving on…Where were we?
Oh, yes...as a practical aspect, if you are in a relationship with someone who is assaulting or has assaulted you, or were previously in a relationship with this person, or are fighting a new significant other of your former partner, congratulations, you have just stepped on a land mine called “domestic violence.”
This particular land mine is especially fun, because not only do most states take a more careful look at the incident, some place it on its own docket with prosecutors assigned to deal with “people like you” who act against people they are in or have been in a relationship with, and they don’t like people who do that kind of thing. If you are having trouble in a relationship that is troubled, get counseling and if that doesn’t help get the $&@^ out.
Do not be afraid to call the police to report harassment and if need be, consult with an attorney to discuss how to best proceed with restraining orders and orders of protection. This is an area where you need to document, document...and then document some more. If the SHTF you’d better have your paperwork in order to have counsel show the police the history of what has been ongoing in order to establish the reasonableness and appropriateness of your actions.
Family: we all love them even if we can’t stand them. Mothers-in-law, brothers-in-law, sisters (I’ve got one, anyone want another?). I can’t tell you how to deal with your family. Hell, I can barely deal with mine (really, does anyone want another sister? I’ll throw in cash, not much but some). If anything happens between you and a family member, guess which docket you are on? That’s right: domestic violence and the attendant docket that is just full of people who society just doesn’t cotton to anymore.
When dealing with family, stay sober. Yes, I know, drinking helps when you deal with them (or in some cases, allows you to understand them), but it does impair judgment and can land you in trouble you might have been able to walk away from if you were sober.
If you are having an argument with a family member, don’t let it get out of hand. Ask them to leave if it’s your place, or leave theirs if you have to. Too many times tempers get heated, someone snaps and POOF: the DV docket. Other than the emotional aspects of realizing you got into a stupid conflict with your brother-in-law over something neither of you really cared about, if you are convicted of a domestic violence crime, kiss your ability to own firearms goodbye.
As above, if you have issues with a family member that go beyond simple arguments and you are afraid something may occur, don’t be afraid to get the issue documented with the authorities. If the first piece of information the police get is a 911 call after a serious incident where you used force, you get some new labels: “assailant” and “defendant.”
Custody issues related to kids: This usually involves drop-offs and pickups, and can be a really shitty time for everyone. Even former spouses who absolutely won’t speak to each other have to inevitably confront each other for these exchanges. They can be tense, emotional and one or both might be spoiling for a confrontation about long-standing issues which either have not been addressed, addressed improperly, or addressed very well by one side’s attorney to the detriment of the other. Throw in Mom’s new boy toy who’s heard “all about you” or Dad’s perky, attractive “friend” who is not quite finished with college, and things can get ugly. Aside from the issues of domestic violence that confrontations here raise, fighting in front of your kids may get child services involved and you may become familiar with a new phrase you’d rather not be hearing, “Risk of injury to a minor.”
When dealing with custody issues such as pickups and drop-offs, consider using a public place with good security and surveillance systems. If you can, inform security that you and your spouse will be doing a custody switch and ask if they can possibly have a guard in the area.
Also, limit your time at the exchange. The less time on site, the less time you are exposed to any problems. Besides, the activity you have planned for tonight started three minutes ago and you have to get going. “Too bad, so sad…no fight tonight…bye.”
Maybe handling the pickups and drop-offs on a “make it up as you go” plan isn’t going to work. If needed, a court can impose police-enforceable orders on both parties as to the location, time and manner in which these events are undertaken. If you think you might need restraining orders or things of that nature, then it’s time to talk to your attorney or someone in your local courthouse’s family violence office. Nobody wants court or government interference if they can avoid it, but sometimes it’s better than the alternative of handling it yourself.
If you have any of these issues ongoing, be aware of them and if possible, clean them up to the best of your ability. Yes, some of it may cost money, but it will be money well spent, giving you peace of mind knowing that it’s taken care of, not to mention knowing that you’ve taken a step to insure that if you do end up in a use of force situation, you have as many loose ends tied off as possible.
As a last note: Several times above I’ve mentioned calling the police and restraining orders. It’s very common that people who are interested in self protection view those ideas with great scorn and derision–and standing alone, those feelings aren’t unwarranted because pieces of paper by themselves don’t protect you.
However, the police and the courts who will be adjudicating your situation after it happens expect people to go through the procedures the law establishes for managing potentially violent situations.
Calls to 911, police reports and restraining orders: these steps and others are those which society through the legislature and courts expect you to avail yourself of. The use of force against another person is an extreme event and considered a last resort.
Merely because people feel that the steps that precede physical action are ineffective does not invalidate them or make them any less necessary. They are tools to be used as appropriate, either to give the authorities more ability to act such as in the case of having someone who is “merely trespassing” arrested for violating a restraining order (hopefully negating an incident “this time” by the arrest) or for laying the groundwork to show why a use of force was the only reasonable action someone could take at a time in the future. The difference between justified or unjustified can be hard to find in some instances, and the time to help clarify next year’s incident may be today.
Too many people assume, “A good shoot is going to be a good shoot,” then get hit from an unexpected direction. Life isn’t simple. The aftermath of a use of force situation isn’t simple, either.
[End of September 2012 eJournal.
Please return next month for our October edition.]
The eJournal of the Armed Citizens’ Legal Defense Network, Inc. is published monthly on the Network’s website at http://www.armedcitizensnetwork.org. Content is copyrighted by the Armed Citizens’ Legal Defense Network, Inc.
Do not mistake information presented in this online publication for legal advice; it is not. The Network strives to assure that information published in this journal is both accurate and useful. Reader, it is your responsibility to consult your own attorney to receive professional assurance that this information and your interpretation or understanding of it is accurate, complete and appropriate with respect to your particular situation.
In addition, material presented in our opinion columns is entirely the opinion of the bylined author, and is intended to provoke thought and discussion among readers.
The Armed Citizens’ Legal Defense Network, Inc. receives its direction from these corporate officers:
Marty Hayes, President
J. Vincent Shuck, Vice President
Gila Hayes, Operations Manager
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