The Aftermath

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Category: The Aftermath

Published: 21 July 2023

As a reminder, in self-defense training you are taught never to shoot with intent to kill; you shoot to stop the threat of death or great bodily harm. This is not meant to say that you are to aim your firearm at the attacker’s leg, foot or hand. You are in fact instructed to shoot at the largest center of exposed mass. Most often this will be the center of the attacker’s chest. If the byproduct of stopping the threat is death, that is not your concern. After all, it was the attackers actions that resulted in him being shot. Once the threat of death or great bodily harm passes you must stop your use of deadly force or risk criminal charges. You need to be indifferent regarding the health of the attacker. Your only concern should be stopping his forward motion and preventing your own death.

For legal reasons, never use the phrases and or words “kill”, "accident", "mistake" or "I didn't mean to" (just to name a few), when referring to or describing your own actions. You cannot claim self-defense if the shooting was an accident or a mistake. Do not let your own words send you to prison. A claim of self-defense is an affirmative defense that is reserved for intentional acts based on necessity. It is also important to mention that you do not automatically get to claim self defense at your trial, should you be arrested and charged. The defendant and the attorney will have the burden of production in order for the judge to allow the defendant to argue self defense in front of the jury. The "burden of production" may also be referred to as establishing a prima facie case for self defense. Having the burden of production reinforces the importance of self defense legal training and knowing ahead of time what self defense is and what self defense is not. If charged with murder or manslaughter and also not being allowed to argue self defense in front of the jury, this poses some serious challenges for the defense attorney.

After a self-defense shooting, remaining calm and in control will be important because it will set the tone for how others perceive you and how law enforcement officers interact with you. After all, an out of control and irrational person with a gun may make others uncomfortable and create a dangerous situation that otherwise would not be dangerous. Employ the use of safe gun handling techniques so there are no accidents. Do not sweep the barrel of your gun across innocent bystanders. Keep your finger outside the trigger guard to avoid an accidental discharge.

If you should have to fire your gun in self-defense to protect your life or the life of a family member, your first priority is ensuring your continued safety. Many times criminals will work in pairs or groups so ensure there are no additional threats in the area. Seek out some form of cover even if it is only having a wall to your back. If it is not safe to remain in the area of the shooting then leave. Go to the nearest gas station or retail establishment and call 911 immediately. Otherwise stay where you are and call 911. If someone (a bystander) tells you that they have already called the police, call yourself to ensure the accuracy of the information and to have record that you called as well.

Pertinent information for the 911 operator:

• Location and or address
• Name
• You have a permit to carry a firearm (assuming you do)
• You were attacked, someone tried to kill you and you had to fire your gun in self-defense
• Provide a description of yourself and state whether or not you are holding the criminal at gunpoint or if you have your firearm in your hand
• Request medical attention for your attacker (MN statute 609.662) and yourself if required
• Follow the instructions of the 911 operator unless you feel the instructions will jeopardize your safety

When speaking to the 911 operator, only provide information related to your safety and only provide limited information on the most obvious facts regarding the shooting. Do not provide details regarding the incident. From this point forward you are in legal jeopardy and everything that you do and everything that you say can be used against you in court (criminal and or civil).

In the state of Minnesota if you shoot someone you are legally obligated to render aid. This is as simple as asking the 911 operator for an ambulance. Criminals are dangerous and sometimes criminals will “fake” injury or death in an attempt to gain an advantage in the altercation. Do not approach the person you have just shot. This person may still be dangerous.

While waiting for the police to arrive, do not have protracted conversations with witnesses, do not threaten witnesses and be mindful of the direction your firearm is pointed. Ask those in the area to remain and wait for the police as they are witnesses. Ask witnesses to call 911 to get their account of what happened recorded. Ask witnesses if they are injured. If the criminal attempts to flee, let him. You are not legally obligated to prevent the criminals flight and you certainly cannot shoot a fleeing criminal. However, should the criminal attempt to regain control of a weapon, it would be prudent to conclude that your life was once again in jeopardy and the use of deadly force would be legal if the criminal resumes the attack.

While waiting for the police, it is imperative that the integrity of the scene be intact for the investigation that will soon follow. Always be aware of the attacker’s weapon. The attacker’s weapon is evidence that will help to prove your case should you end up in court. Some bystanders may want to assist the attacker and provide medical attention. You should strongly advise against this action as the attacker may still be armed or the person going to the aid of the attacker may be an accomplice and use the attacker’s weapon against you. Maintain distance between bystanders and the attacker, but never threaten anyone as this is likely to be misinterpreted later.

When greeting the police, it is likely they will have their guns out and drawn on you. Remain calm and rational and follow all instructions immediately and keep your hands visible. All actions should be slow and precise. The police will want to secure the scene and bring things under control. When they arrive, all they will see is you holding a gun on the person that you have shot. Do not argue with the police or other witnesses on the scene. Witnesses may have a distorted view of what happened or may intentionally give false testimony because they are friends with the attacker.

Even if you are an attorney or were a cop in a former life, you are most likely not qualified to make statements to the police immediately following a self-defense shooting. This is because of the psychological and physiological effects a deadly encounter has on the human body (more on this later). When questioned by the police only answer questions with obvious and self-evident answers like your name, where you live, he tried to kill me, I had to defend myself, there is his weapon, those people are witnesses, yes I have a permit to carry and so on.

When the police press for details regarding the self-defense shooting, you need to respectfully respond with something similar to the following:

"Officer, I want to cooperate fully but I wish to speak with my attorney. In addition, I do not consent to a search"

Questions the police may ask you:

• How many shots did you fire
• Where were you standing
• What kind of weapon did the attacker have
• What was said by the criminal
• What did you say to the criminal
• What were you doing prior to the attack
• How much time passed

These types of details need to be discussed with your attorney and no one else. Between the complexities of the legal system, errors made by law enforcement, misspoken statements, misinterpretations and malicious prosecutions, the deck of cards is severely stacked against the private citizen.

If your spouse is with you, your spouse needs to invoke their rights as well regarding the need for an attorney and no consent to a search. If you have children with you, you need to invoke their rights on their behalf. Request that your children not be questioned unless in your presence and in the presence of your attorney.

Regarding your rights, law enforcement will do whatever they want and sometimes make the rules up as they go or even lie to get information. Let your attorney sort things out later. Never resist police action, never argue with the cops or attempt to give a legal lesson on constitutional law, doing so will only add complication to your case and invariably cost you more money. On the street, the police have the power and authority over you. Do not attempt to fight them on their own turf. Take the battle into the courtroom.

After a defensive shooting outside the home, there is a high probability you will be arrested and held until things get sorted out. If you plan to carry a firearm outside the home with a permit, have a criminal defense attorney lined-up. In the event you should need one, flipping through the Yellow Pages from Hennepin County Jail at 2AM is not the best of plans.

If you are forced to defend yourself in your home and the person you have shot is not known to you and forced entry into the home is obvious, the police will tend to give the defender the benefit of the doubt. However, all the same rules still apply and that is, you want to speak to an attorney and you do not consent to a search. This is still important even when the shooting happens in your home.

Law enforcement is responsible for collecting information and assigning blame. Only the prosecutor can decide whether or not to pursue legal action against you. The police do not make this decision even if they tell you that they do (they of course do have influence). The police have been specially trained in interrogation techniques and this often includes lying and bending the rules to extract a confession. Generally speaking, it would be fair to say that most people get themselves deeper into trouble as a result of what they say to police. When law enforcement officers are themselves involved in a shooting, the officer is specifically told not to make statements to anyone without consulting his or her attorney. What is good for the police should be good for private citizens as well.

Misperceptions, Embellishments, and Confabulation:

"Confabulation can be defined as the unintentional creation of a false or inaccurate memory to compensate for memory gaps or deficits. Although some similarities may exist, the phenomenon of confabulation is distinguishable from other issues like suggestibility, malingering, and delusions. The possibility of confabulation is particularly pernicious in criminal justice settings. Here, self-reported memories play an integral role in the confessions and testimony of suspects, defendants, victims, and eyewitnesses. To raise awareness of this possibility, and protect against its consequences, this article reviews warning signs and risk factors for confabulation, tips on how to communicate with and treat individuals who may be confabulating, and recent research in the area of confabulation. In short, this serves as an introduction to confabulation for legal professionals." Jerrod, Brown & Charette, Cody & Huntley, Deb & Wartnik, Anthony & Wiley, Cameron & Cich, Janina & Morgan, Stephen & Dodson, Kimberly. (2017). Confabulation: A Beginner’s Guide for Legal Professionals. Forensic Science and Criminology. 10.15761/FSC.100119.

Were you injured during the altercation between you and your attacker? Maybe a sucker-punch to the head or a blow to the base of the skull or possibly fall and slam your head against the pavement or sidewalk? Maybe you don't know or cannot remember because the attack happened so fast. A good article worth reading: Traumatic Brain Injury and Confabulation in Criminal Justice and Legal Settings: A Brief Review for Caregivers and Professionals. The author, Jerrod Brown, Ph.D., discusses traumatic brain injury (TBI) and what legal issue can result from TBI-induced confabulation, which include: 

Waiving Miranda Rights
Police Interrogations (incl. False Confessions)
Entering Pleas
False Allegations
Competency to Stand Trial
Providing Testimony (incl. Eyewitness Suggestibility)
Serving as a Witness
Court-Ordered Treatment
Victimization During Incarceration
Offender Reentry (incl. Probation and Parole)

Regardless of the situation (shooting or not), if law enforcement demands that you accompany them to the police station for questioning, then you are most likely a suspect in a crime. Ask the officer, “Am I under arrest?” If the officers answer is “no” then ask the officer, “Am I being detained against my will?” If the officer replies “no” then politely and respectfully tell the officer that your attorney will be in contact to answer any questions and that you are leaving. If you should end up at the police station after all of this, your reply to any and all questions is, “I want to speak to my attorney and I do not consent to a search”.

Psychological, Physiological and Social Effects

During an attack, the body can respond in a number of ways to being threatened with bodily harm. For example, the parts of the brain that control higher thought processes begin to shut down and relinquish control to more primitive and survival-oriented brain centers.

Every life-threatening encounter is different and each person will respond to an attack in different ways. There is no way to determine ahead of time how a person will react even if this person has been in a similar situation in the past.

When confronted with an attack, you may initially delay responding because of denial – you just can not believe you are being assaulted. Also, many people have an internal resistance to inflicting deadly force in a face-to-face encounter. This inherent reluctance can be overcome through fear as well as through conditioning and visualization training.

There are five possible responses to a life-threatening encounter:

• Freeze – The victim of the attack may be so overwhelmed or surprised by being threatened, the victim may become incapable of any action
• Submit – Simply giving into the attacker
• Posture – Combat without combat. Words, sounds, gestures and body language are weapons used to dominate, intimidate and subdue another. Depending on circumstances, the attacker and the victim, one may try to out-bluster the other until one backs down or flees.
• Flight – Retreat or running away from the situation
• Fight – The use of reasonable force to prevent an attacker from harming you

No matter what your level of training or how capable you believe yourself to be in handling stressful situations, you will experience, to a greater or lesser degree, a number of involuntary physiological changes during a serious defensive situation.

General Bodily Responses to Imminent Danger
In most cases, there will be an amount of time between when a threat is perceived and when the actual assault or attack begins. This may occur when you first notice a mugger stalking you on the street. During this period you will experience a number of bodily responses to imminent danger. Your heart rate and respiration will increase (to provide more blood and oxygen to the brain), your pupils will dilate (to take in more light to see the threat better), and your muscles will be tighter in anticipation of sudden movement.

Adrenaline Rush
One of the ways your body prepares for flight or fight is through the release of a hormone called adrenaline. This powerful chemical heightens the senses and increases strength, heart rate and respiration and can also cause trembling of the muscles. Trembling of the muscles can make it more difficult to stand or sit or hold a gun steady. This trembling can sometimes be mistaken by the victim and the attacker as fear but in reality it is a physical reaction to excess adrenaline in the body. Note that while adrenaline can help you more readily perceive a threat, it can also predispose you to overreact to any sudden stimulus.

Loss of Fine Motor Skills
Stress, regardless of its source, results in the loss of fine motor skills. This is often experienced in daily life. For example, it is much harder to unlock your front door when you are rushing to get to a ringing phone. In sports, it is not uncommon for athletes to perform better in practice than under the stress of a live game. During an attack, you will most likely lose the ability to load a cartridge into the magazine or cylinder of your firearm or to open your car door with your key. This is why defensive handgun courses will utilize techniques and recommend firearms that involve gross motor skills. This is also why well-designed defensive handguns are simple to operate and feature controls that are easily and naturally actuated by large muscle movements.

Perceptual Changes During a Threatening Encounter
Survivors of violent attacks as well as those who have experienced other extremely stressful situations, commonly report that during the attack or stressful event, their perceptions of visual and auditory stimuli as well as the passage of time were altered. These alterations, tunnel vision, auditory exclusion and time dilation are involuntary and may have evolved as a survival mechanism to better focus all of ones attention on the immediate source of danger.

Tunnel Vision
Your body will become completely focused on the immediate threat. Seeing or knowing what is going on around you is not likely. It is important to avoid tunnel vision so that other threats can be recognized and dealt with appropriately. Through training, you can learn ways to break tunnel vision. Lowering your firearm slightly and forcing yourself to survey the immediate area will help.

Auditory Exclusion
Auditory exclusion is a sense of having a loss of hearing. This is a situation where hearing becomes difficult which is why police officers are trained to yell their commands. When confronting an assailant, yell your commands to break their auditory exclusion. Yelling also helps to intimidate.

Time Dilation
Time dilation refers to the perception that time has slowed down and you may possibly see your actions and those of your assailant in slow motion. This is why when a potential threat is first perceived, you should wait longer than you initially think is necessary before you relax your guard or emerge from hiding.

Temporary Loss of Memory
Highly stressful events can sometimes cause a mental overload that result in temporary loss of memory. Most often this is manifested simply in confusion over the details of an incident; occasionally however, a person may lose all remembrances of the event. The passage of time often restores the accuracy and completeness of the memory.

Because of this phenomenon, comments you make immediately after you have been involved in a life-threatening incident may not be accurate. Thus, if you are involved in a defensive shooting, you should generally tell responding law enforcement officers only that you were unlawfully attacked by a violent adversary and you had to use force to defend your life. Avoid making any other statements until you have consulted an attorney.

Aftermath of a Defensive Encounter
Prevailing after a violent encounter may make you experience many emotions. These emotions often occur in the order listed below, but are not universal; some people may not experience any of them and some may experience all of them.

• Elation – Typically an immediate feeling of having survived and prevailed in a life-threatening encounter. In today’s social and political atmosphere, attack survivors may feel that they should downplay or ignore this emotion. Elation is the result of a release of endorphins and other sensory and mood enhancing chemicals into the bloodstream. There is nothing wrong with a momentary or lasting feeling of elation
• Revulsion – The victorious victim may encounter nausea, vomit or even fainting from the emotional shock of seeing the result of the confrontation. The absence of revulsion does not mean you are a bad or cold person. Your own life experiences may have contributed to a higher tolerance for the unpleasant consequences of a shooting
• Remorse – Many survivors experience remorse at the thought of having to take a human life. It is simply a feeling of sadness or sorrow
• Self-doubt – Self-doubt occurs when the victim questions the moral and legal aspects of the shooting and questions whether or not it was necessary
• Acceptance – Usually the last emotional state. The victim comes to terms with the action taken in order to protect his or her own life in an act of self-defense
• Post Traumatic Stress Disorder (PTSD) – Symptoms include flashbacks, recurring nightmares and an inability to function normally such as maintain a job or keep a marriage together. While PTSD is possible for people who experience extreme situations, it is also very rare.

Social Aftermath
After a self-defense shooting, there is a risk that you will become a social outcast. Depending on circumstances, you may be treated differently by co-workers, your neighbors might stop talking to you, your children may be treated differently by teachers and classmates and your spouse may end up divorcing you. In some extreme cases, it is possible that you and your family will need to change jobs, schools and the city in which you reside in order to have a normal life.

After a self-defense shooting, it is sometimes necessary to seek professional help to ease the emotional strain experienced by the family and individuals directly involved.

Criminal and Civil Court

There are four hurdles that you must jump in order to be successful at self-defense. The first is that you must be able and willing to defend yourself when evil presents itself and puts you in a life-threatening situation. Second, you must actually beat your opponent to the point where the threat of death or great bodily harm has passed. Third, you must be cleared of all criminal charges and lastly you must be cleared of all civil charges.

Civil law is completely separate from criminal law but understanding the two is critical. It is possible that after being found not guilty or completely avoiding criminal prosecution altogether, that you will end up in civil court for wrongful death or injury to your attacker (assuming he survived). Should your attacker be killed, the attackers family can come after you in civil court.

In criminal court, the standards of evidence are high. It must be proven beyond a reasonable doubt that you did what you are accused of doing in order to be found guilty. In civil court, the standard is only “proven by a preponderance of evidence”. In other words, if the other side tells a better story than you do, you will probably lose the civil case. A perfect example of this is the OJ Simpson case where OJ was found not guilty of killing his wife in the criminal trial but was in fact found guilty in the civil case (wrongful death).

The law is structured in a way as to make it very difficult to harm another human and get away with it. When using deadly force to defend yourself, exercise great restraint and ensure your actions are justified under the law, as you will be held accountable.