By Ed Santos, The Shooting Channel
What to expect after you have defended yourself.
Having taught over 16,000 concealed carry students and been involved as an expert witness in numerous shooting cases, I am always surprised by the concealed carry shooters lack of understanding of the post shooting process. Sadly, this lack of knowledge is often due to an incomplete presentation offered by the CCW instructor or is further perpetuated by the no training requirement found in some states.
Don’t misread my intention here; I am not advocating any training requirements that would even in appearance approach any form of gun control. However, if you carry a firearm, or any weapon for protection, and you are not aware of the elements necessary to prove innocence in one’s defense, you are at great risk of losing your freedom and all the material things you have worked hard to attain.
Before I get into the particulars of a post shooting incident, I want to make it clear that I am not offering legal advice in this article. I am not an attorney and the purpose here is to make the reader aware of the typical sequence of events that take place after someone is shot. This info is presented in general terms and may differ from your particular state’s rule of law. It is merely presented with the intent to inspire the reader to be sure of the laws and procedures that may impact you if you have to shoot someone in your defense or the defense of the innocent.
There is no easy way out of the emotional barrage after a self-defense shooting incident.
From a sequence perspective, the following steps are typical in most states:
- Shots Fired
- 911 Call
- First Responders
- LE Supervisors
- Detectives – Some Jurisdictions ADA responds
- Investigation / Questioning
- Prosecutor Determination
- Trial Phase
- Appeal Process
- Civil Trial
So let’s assume you have no choice but to shoot an attacker to protect yourself. I hope this is something you are never faced with but if in fact it happened it will probably be the most traumatic experience of your life.
Bad Guy Down; you made the decision that shooting your attacker was appropriate, necessary and the correct thing to do. Under the level of stress you will be experiencing it is important that you make sure the threat is truly over. This is not television or the movies. Do not expect the bad guy to immediately fall and or stop trying to hurt you. Be sure the threat over. Attacker down, but are there any others trying to hurt you? Assess everyone and your surroundings. Be sure to check your six. Holster only when you are safe and it is appropriate.
Are you injured? Be sure to feel yourself and be sure there is no blood on your hands. Your adrenaline and other physiological aspects you are experiencing may very well block out your pain from injury. Is anyone else hurt? Any collateral damage to the people around the incident? Is it even safe to remain in area and are you capable of securing the scene?
You may even choose to render some form of catastrophic care to the person you shot. A word of caution here, be sure the bad guy is no longer a threat. The last place you want to find yourself is on the ground with a ground fighter. Throughout all of this never lose sight of the fact that You Are The Victim.
After the threat in neutralized, then call 911 immediately
The 911 call. The first words out of your mouth should be the location. This is critical in case your connection is lost. You may realize that you are back in the fight and have to lose contact with the 911 operator. If you have not provided the location there will be no one coming to help you.
Remember you are the victim, so provide the minimal amount of information. I addition to your location, I would suggest you provide the need for the police and medical. Tell the operator you were attacked and someone has been shot. I would not say much more than that. You may want to identify yourself and give a discription of what you are wearing etc.
The operators are very well trained. They will be trying to provide as much information to the first responders as possible. During this time you will have a great physiological need for someone to say you did the right thing. Do not get too involved with this call and say too much. There will be plenty of opportunity for you to articulate your actions to the police when you are in the presence of your attorney.
We need to remember the police are not your friends or your enemy. They are just trying to do their job, which part of, is to determine what happened and if a crime has been committed.
First Responders Arrive. First responders typically come in two forms; Law Enforcement and Medical. Both share the primary concern of scene safety.
If medical arrives in the area first, they may not approach the scene until Law Enforcement clears the scene and determines it is safe.
Law Enforcement Arrives. They are on scene and they make contact with you. They begin to preserve the scene, assess the injured, identify and collect evidence, talk with witnesses and so on.
The scene after the first responders begin to arrive.
Medical Arrives. Their primary concern is the patient. They will try to preserve evidence and the integrity of the scene. In some cases they may remove the victim before police complete their investigation if the victim is still alive.
LE Supervisors Arrive. The crime scene will be secured and a crime scene perimeter entry point along with an access log will be established. The Sergeants, Lieutenants, Captains and even the police Chief or Sheriff may show up. Don’t let all these supervisors make you nervous. A shooting incident is a serious call for all involved. This seriousness often brings out the “brass” to make sure all procedures are followed and the investigators have all the resources necessary to properly process the crime scene.
At the crime scene a great deal of effort will be dedicated to gathering evidence and documenting all the elements of the crime scene as the first responders found it at the time of their arrival. Of course, the reason for all this is to find out what happened and determine if a crime has been committed and to what extent those present were involved.
The loneliest room in the world.
The Interview Room. A small room often thought of as an interrogation room designed to shift the power in favor of the investigators. Be respectful of the process and the police who you are dealing with. Remember you are innocent, the investigators just don’t know it yet. They will, but for now the process is slow, intimidating, embarrassing, and often out of your immediate control.
Ask for your attorney as soon as possible. It is your right to have an attorney present when questioned about the incident. This is not the movies or television and you are not being interviewed about a speeding ticket. You need to protect yourself from both the criminal and civil process. Speaking to the investigators without an attorney first hearing and approving your answers can be extremely dangerous.
The investigators will form opinions based on fact. This is an often overlooked principle when lay people discuss events surrounding an incident and form their public opinions. The professionals will analyze the totality of their findings and come to an educated decision as to what transpired based on the facts of the investigative efforts of the entire investigative team.
If the police arrest you. You will typically experience one of the following three scenarios.
- The prosecutor’s office may not agree or support the charges as presented by the police. If they decide not to pursue charges, you are released.
- You post bond (bail).
- You stay in jail and LE will transport you to arraignment.
Police submit a report to a prosecutor which will notify them of the arrest and their charge sheet. The prosecutor’s team will review all the evidence. Basically they are determining, based on the evidence presented, if they can win the case. If they agree with the charges a felony or misdemeanor determination will be made. They may decide to file on all or a few of PD (Police Department) charges. They will often add additional charges they feel are appropriate.
An Attorney is your advocate guiding you through a daunting and confusing legal system.
Generally this will all take place within 48 hrs of the in-custody time. In most cases, weekends, public holidays and court holidays do not count in the 48 hour timeline.
First time in court: The first appearance before a judge will be when you can expect to hear the charges against you. This will be told to you on the record by a judge. The judge will also read you your rights as they relate to the charges and notify you of your access to an attorney. If you can’t afford an attorney the court will provide one to you free.
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You will then enter a plea. Typically you will plead Not Guilty – which is you saying that you did not commit the crime with which you are charged. You might plead Guilty – which is you admitting you did the crime as charged. In this case the judge finds and enters the conviction in record. You may decide to enter a plea of No Contest – which is you saying you do not contest the charges. This plea is similar to guilty plea but the conviction can’t be used against you in civil trial.
After you enter a plea the judge will either release you to your own recognizance and provide a specific date and time to return to the court or hold you. The judge may also decide to set bail. In this case you will be returned to jail until bail is made. The judge could also refuse to set bail. If he refuses bail you will be incarcerated until a verdict in the case is established.
It’s possible that you may be arrested and arraigned. Be prepared.
Based on arraignment the prosecution and defense exchange information. This process is also known as discovery. You may be limited on seeing all the discovery information but not the lawyers – as officers of the court they are required to protect the identity of witnesses.
In my opinion, this may be the best reason to have a lawyer represent you. With an attorney representing you at least someone on the defense team will be privy to all the discovery and can defend you accordingly.
Pretrial motions are conducted and decided. You are able to change your plea at any time. During this phase of the process, the judge and lawyers may discuss resolution options. A plea bargain offer may be made at this point. Your attorney will present you any pretrial options and offer suggestions with regard to your decisions at this time.
Jury trial or Court trial? Most defendants choose a jury trial of their peers. In some cases the defense will request a Court trial. It has been my experience that your attorney will have a definite opinion and subsequent recommendation for you in this regard. However, the decision is ultimately yours. My opinion; listen carefully to your attorney.
The Trial Process starts with jury selection and then opening statements. Each side will have an opportunity to present evidence, hear and challenge witness testimony and then progress to closing arguments. The number of days to hear the case will depend on the complexity of the prosecution and defense cases.
After closing arguments, the jury will be given their instructions by the judge. This is always an area that concerns me as the judge certainly sets the stage for the jury through these instructions. The outcome of the trial is now in the hands of the jury. The jury must find beyond a reasonable doubt based on the totality of the facts presented and what we call the doctrine of a reasonable and prudent person’s interpretation.
A Not Guilty decision is an acquittal. The arrest still shows on your record.
To CLEAN YOUR RECORD – If wrongfully arrested, you must have a hearing before a judge to determine factual innocence. It is much harder to prove factual innocence than prove beyond a reasonable doubt.
If found Guilty the judge will enter the finding of guilt for the record and begin the sentence phase of the process.
The Appeal is NOT A NEW TRIAL. So many people believe an appeal is another chance to plead their case. Not so. The applet court does not decide the facts of the case. For an appeal you are basically saying the trial court made legal error. You may also say there was not enough evidence for verdict rendered.
If you are arguing Mistakes of Law, then a hearing will be held and both sides will present their positions. The court can decide if any trial errors prejudiced (hurt) your case and act accordingly. The appeal process typically has timelines and deadlines that must be followed.
The Civil Case — Hang on it is coming!! But that is the subject for a future discussion.
I hope you found some of this information helpful.
I hope you will discuss any questions with an attorney who can provide specific detail for your particular laws and local court procedures.
Ed Santos is author of the books “Rule the Night Win the Fight” published 2008 and his latest “Low-Light Combatives” published 2013. He is the Owner/Founder of Center Target Sports, Inc. and Tactical Services Group. He teaches advanced firearm skills and Low-light training around the world and can be reached at firstname.lastname@example.org.