Attorney Question of the Month

This month's question comes from a Network member who is also a firearms instructor. He asked--

If a Network member is accompanied by a friend or family member at the time of an armed self-defense incident, is it preferable that the 9-1-1 call be made by the associate? Why or why not? What information should the associate provide to the police dispatchers?

Marc S. Russo

25 Plaza Street West #1-K, Brooklyn NY 11238

718-638-5452

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I would say by the friend or family member–as long as one trusts them, and they specify to responding police that the good guy is armed. That way the good guy can focus on the immediate threat.

Bruce Gordon

Your Family Lawyer, LLC

2425 Post Road Ste 202, Southport CT 06890

203-259-1100

https://www.myfamilylawyer.com/

Easy, the person who shot (or both or all of them) should call, or have the person making the call state it is being made for all the people there. Do not call them shooters, etc. They are victims, but start off calling them people. That should be sufficient. They need to follow the usual script we have gone over in many of these questions.



“Why” is so that they appear to be secure in the knowledge that they did the right thing.



Do not give every bit of information but give enough to stabilize the situation and preserve evidence, especially that which corroborates your story.



Remember half of the thing here is how the issues appear. Making the call, especially if you start off asking for an ambulance, is important. This does not mean give up your rights, the 5th amendment right against self incrimination was hard fought for in the constitutional convention, do not give it up!

John R. Monroe

John Monroe Law, P.C.

9640 Coleman Rd., Roswell, GA 30075

678-362-7650

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It always would be preferable for the 911 call not to be made by the member (assuming the member is the person who used a firearm). There are several reasons for this:

Assuming the member later becomes a criminal defendant or civil defendant (or both), the 911 recording of the member would be admissible in court as “an admission of a party opponent.” So, whatever the person said in the heat of the moment, which is likely to be adrenaline-fueled, will be usable in court. On the other hand, if a third party makes the 911 call, the recording may be excludable from evidence as hearsay. There are other possible ways the recording could be admitted into evidence, but that is beyond the scope of this response. If the caller is a third party, he or she may be somewhat less excited, and therefore provide a more unemotional report. The member should use the time between the incident and the arrival of the police to get composed and prepare for the upcoming confrontation with police. It also would be a good time to call the Network to discuss the need for counsel, and the member cannot be on two calls at once. The 911 operator would want to keep the member on the phone for a while, perhaps until the police arrived. The effect would be to prevent the possibility of making any other calls. If the third-party caller is the spouse of the member, that would be ideal, in many jurisdictions, including mine (Georgia), there are two privileges that could apply (the spousal privilege and the spousal communication privilege). These might prevent the 911 call from being used as evidence and prevent the spouse from having to testify, too.

If a third party makes the call, he or she should only report sufficient facts to communicate the need for emergency response, the nature of the emergency, and whether there is still an active situation. E.g., “There has been a shooting. There are [X number of people] with gunshot wounds. There [is or is not] a continuing shooting threat [and if there is, provide a physical description of the threat, and last known location]. Send police [and ambulance(s)].”

The dispatcher probably will ask what happened. There is no need to get into additional details. The dispatcher is not writing a police report. He or she is not writing a report at all. The police are going to ask what happened when they get there, so whatever is told to the dispatcher is not going to have any relevance, unless of course it is more incriminating than what is later told to the police or testified to in court.

Garret B. Hannegan

Morgan & Pottinger

401 S 4th Street, Ste 1200, Louisville, KY 40202

502-560-6756

https://morganandpottinger.com/attorneys/garret-hannegan/

Yes, it would be preferable to have the friend or family member make the 911 call for assistance.

First, the Network member has just been involved in what we could assume is a very stressful incident and may have shot or killed an assailant, so let’s give him or her a chance to calm down and get the blood pressure back to a reasonable level.

Second, if the assailant has surrendered or been wounded, the member should be concerned about whether the assailant may continue to pose a threat, so keeping an eye and a gun on the bad guy are important enough that someone else should make the 911 call.

Third, since we have no idea what facts are in play, we also have no idea whether the member faces any kind of legal jeopardy as a consequence of the self-defense event. That means the member should avoid saying anything that will be recorded while adrenaline levels are peaking because resulting statements could potentially be used as evidence if a prosecuting authority decides to pursue some kind of charges.

The friend or family member should advise the 911 dispatcher something like, “There’s been a shooting. My uncle had to defend himself against a guy who was attacking him” and say that the police are needed along with an ambulance if anyone is injured.

Each event has its own facts, and this answer doesn’t cover every situation as you can imagine.

John I. Harris III

Harris Law Office

501 Union Street, 7th Fl., Nashville, TN 37219

615-244 6670

http://www.harrislawoffice.com/

An individual who has been the victim of a crime that resulted in the use of deadly force should to the extent possible not be the one who makes the call to 911 or emergency services if there is someone else, a witness, who can make that call.



One of the reasons that the person who was directly involved in the use of deadly force should not make the call or even talk to officers at the scene if someone else can is that in Tennessee and many other states the act of using deadly force is on the first order a potential criminal act–an assault or perhaps a homicide. The law classifies an act of “self-defense” at least in Tennessee as a justification or necessity but it is still classified as an excuse or a defense to a possible criminal charge. Cases are tried frequently on the issue of whether the actions in fact met the definition of a “self-defense” and in some cases they do not.



For example, there is a reported case in Tennessee where an individual was attacked and responded with deadly force by shooting the attacker. The facts were generally that the “victim” shot the initial attacker several times. The court determined that it was not self-defense based largely on the statements and testimony of the victim – now defendant, now felon. Generally, the testimony was that the victim shot the attacker three times. The court and the appellate court concluded that the first two shots were justified self-defense but that the third shot was not justified self defense because the victim stated that at that point the attacker was on the ground and no longer presented a threat yet he shot anyhow. That third shot based on the “victim’s” own statements formed the basis for a felony criminal conviction.



Another reason that a victim should not talk to the 911 or police immediately following a shooting–if possible–is that it is likely that the victim and even the associated witnesses will be under an unusual amount of stress, excitement, adrenaline, unrealized shock and perhaps confusion. The victim might require immediate medical care or treatment–even if it is for nothing more than anxiety, chest pains or a “racing heart.”

Refuse to talk about what had happened. Instead, ask or have someone ask for medical care and assessment of the victim at a hospital if there is any reason to feel that this intervention is needed. Even if it’s not obviously needed, perhaps it is good to ask for that assessment and treatment anyway because often even in car wrecks people do not realize for a couple of days that they were injured.

Avoiding talking with witnesses and officials immediately following such a traumatic event will allow things to calm down, facts and memories to become clearer and for a careful review or debriefing of the circumstances with a personal attorney which conversation will be protected.



Even if you are the friendly witness, the call to 911 and the discussions with law enforcement need to be limited to calling for emergency medical help, identifying the location and describing the parties involved and relaying any obvious medical needs such as a knife wound or gunshot injury. Don’t be a chatter box and don’t try to persuade 911, the responding officers, the detectives or anyone else that this was necessary or justified at that point in time. The officials will interview everyone and if not at that time then later when things are calming down.



So, the 911 call perhaps should be nothing more than:

“My name is _____. I am at the corner of 1st Street and Main. I am a _____ male, six feet tall and wearing a Tennessee Titans jersey. I was attacked/I just witnessed an attack. The attacker is/was a ____ male/female and is still present/left the scene and dress in jeans and a red shirt. We need an ambulance.”

Hang up unless the attack is still occurring. You have no obligation or duty to answer any questions or provide other information. The purpose of the 911 call and talking to officers on the scene is to get help and avoid more injury–not to try the case.



It might actually be a good idea if you are legally carrying a gun or knife that you have a card with a simple prepared script in your wallet that you can follow so you know what information to provide and when to stop.

John Chapman

Kelly & Chapman

PO Box 168, Portland, ME 04101

207-780-6500

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I do not think this is an easy question. There is no clear answer, without assuming a lot of variables.

The short answer: it depends lots on the capabilities and inclination of the accompanying person. My eldest daughter would speculate openly and orally about everything from the Loch Ness Monster to divine intervention in the event. My youngest could be trusted to give only name, name of those at the scene, location and number of injured persons, if any.

Obviously, “they” aren’t “you,” and thus what they say aren’t obviously admissions -- unless they can:

be considered your co-conspirator;

or your agent;

and their observations might be “excited utterances,” which they wouldn’t be with some distance from the event;

in some jurisdictions, your attempt to direct what they say to law enforcement might be “obstruction of justice” or “tampering” by YOU!

If you are both “involved,” it might be bad for them, good for you to make the call. If you are in no shape to make the call, they should probably make it. If you are BADLY injured, or someone needs to chase the bad guy and only you know the details, you should probably speak to dispatch.

This subject is worthy of a round-table discussion and a decision tree.

__________

A big “Thank You!” to our affiliated attorneys for their contributions to this interesting and educational discussion. Next month we continue with the answers to this question submitted by our affiliated attorneys.

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