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What Statements to Police – If Any – Should a Concealed Handgun License (CHL) Holder Make after Being Involved in a Shooting

4/19/2015

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Lapin Law Offices is a full-service, Dallas, Texas law firm.  We focus on asset protection, business law, civil litigation, criminal defense, estate planning, family law, probate, and real estate law.  Please visit us at: http://www.LapinLawTX.com or call us today at 972.292.7425.
Question:
Although I have my concealed handgun license, I’m not exactly sure whether, if I am ever involved in a self-defense shooting, I should waive my Fifth Amendment right against self-incrimination and talk with police or whether I should simply make no statement at all and ask to contact my attorney.


Answer:
Persons who are licensed to carry concealed handguns are among the most law-abiding citizens in American society; they have to be, otherwise they would not have been eligible to receive their concealed handgun license.  It follows that Concealed Handgun License (CHL) holders (as they are called in Texas) – are among those in society who are the least likely to have had first-hand experience as a suspect in a criminal investigation.

In other words, CHL Holders are not experienced in responding to questions from police officers who are attempting to determine whether the CHL Holder committed a crime and, in the opinion of the police officer, should be arrested and booked into jail.

And make no mistake about it, after a CHL Holder is involved in a shooting, the CHL Holder will be viewed by police (and likely the local prosecutor’s office) as a criminal suspect, at least initially.

As an attorney who, since 1999, has been representing clients in both criminal and civil litigation matters, my experience strongly suggests that it usually is not a good idea for persons who are – or who likely will be – involved in litigation to make statements to the police.  On the other hand, my experience, prior to entering the practice of law, of being a municipal police officer and detective who, for more than a decade, was responsible for conducting criminal investigations – including both officer-involved shootings as well as general homicide and assault cases – suggests that there are instances where it may be in the best interests of a criminal suspect to give a statement to police.

There are some who advocate that, after being involved in a shooting, a CHL Holder should simply tell police that the CHL Holder was in fear of his or her life; provide police with basic identifying information (CHL, Drivers’ License, etc); and then invoke the Fifth Amendment right against self-incrimination, and be adamant when saying that no statement to police will be made until after the CHL Holder consults with legal counsel.  See, http://dailycaller.com/2013/10/30/the-most-important-article-you-will-read-what-to-do-after-a-defensive-shooting/1/

A different approach, one advocated by renowned firearms trainer, expert litigation witness, and sworn reserve police officer Massad Ayoob, takes a more nuanced approach.  Inform the police:

1.  That the injured/deceased person attacked you;
2.  You will cooperate with any criminal prosecution of a surviving attacker;
3.  About the existence and location of evidence (e.g., firearms, spent casings, knifes or other
     deadly weapons;
4.  About the existence and location of witnesses, security cameras, and the like; and
5.  That you will fully cooperate with the police after you have spoken to your Attorney.

Be polite when interacting with police.  You should, of course, identify yourself as the holder of a CHL and provide your CHL and drivers license to the officer.

See Massad Ayoob’s video on this subject at: https://www.youtube.com/watch?v=pCZXZMYyRl4

This approach does a good job in balancing a CHL Holder’s interests in not making statements that, on the one hand, while well-intended, might be misunderstood, misinterpreted, or even incriminating, with, on the other hand, the need to direct police investigators to crucial evidence that will assist investigators in confirming the statements the CHL Holder may – after consulting with counsel – later make to police.

Lest one think that the Massad Ayoob approach provides for too much interaction between the CHL Holder and the investigating police officers, consider this: The Massad Ayoob approach is, in substance, exactly the approach many police officers are trained to take – both by police trainers and the attorneys who regularly represent police officers – in the event an officer has been involved in a police shooting.

It is important to emphasize, however, that the Massad Ayoob approach should be considered only when the CHL Holder has a reasonable basis to believe the shooting was justified.  If there is any question in the CHL Holder’s mind that the shooting might be unlawful, the make-no-statements approach would probably be the most prudent.  Yes, when it comes to carrying a firearm, judgment is everything.


Click here to: Contact Lapin Law Offices


Attorney Dallas TX 75244
Lapin Law Offices, P.C.
5001 Spring Valley Road, Suite 400 East
Dallas, Texas 75244
972. 292.7425



Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction, or since this publication may have changed statutorily or have been affected by judicial decision.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.
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Liability Issues and the Use of Custom-Made Self-Defense Guns

4/19/2015

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Lapin Law Offices is a full-service, Dallas, Texas law firm.  We focus on asset protection, business law, civil litigation, criminal defense, estate planning, family law, probate, and real estate law.  Please visit us at: http://www.LapinLawTX.com or call us today at 972.292.7425.


Question:
What legal issues should be considered when deciding whether to use “custom-made” firearms as self-defense weapons?


Answer:
As an attorney and former police officer who provides legal representation to both civilian and law enforcement clients in use-of-force and firearms-related matters, and who also gives lectures and other presentations on issues related to “legal self-defense,” I read a fair amount of law enforcement-related training materials. Unfortunately, I often find discussions of liability issues by authors who, although they are subject-matter experts in firearms and use-of-force matters, lack sufficient knowledge of issues relating to legal liability.

One such article appeared in a recent issue of a periodical which focuses on police firearms and tactics. The author of the article is a high ranking, career law enforcement officer with SWAT experience; obviously someone who has subject-matter expertise with respect to law enforcement issues.

The article discussed the use of “custom[-made] duty weapons,” in the context of the AR-platform type of rifle. The end of the article contains a brief discussion of potential civil liability, and states in relevant part: “Some say that if you defend yourself with a gun that has an other-than-factory trigger, you’ll be successfully sued. . . .” In downplaying the likelihood of a successful lawsuit, the article goes on to say that “over the last decade or so, the courts have heavily favored the ‘Totality of the Circumstances’ standard in law enforcement use of force cases. . . . In most of the cases from this century that I have read, the details of the gun never even came up in the legal argument.”

The conclusion that this author apparently has reached – that using custom-made weapons such as AR-platform rifles or after-market components such as triggers, does not present a significant liability issue – is probably correct. But not because “the details of the gun never [come up] in the legal argument” of cases where the outcome is determined by the “totality of the circumstances.”

The reason the “details of the gun” never come up in “totality of the circumstances” cases is simply because the details of the gun are irrelevant in such cases.

Consideration of the “totality of the circumstances” can be one of many factors in a lawsuit alleging an intentional tort (an intentional use-of-force). If a shooting is intentional, it matters not whether the firearm was defective in any respect. All that matters is whether the shooting was justified under the “totality of the circumstances” and any other applicable legal standard. In other words, a justified shooting does not somehow become unjustified simply because it was accomplished with a defective firearm.

If, on the other hand, a shooting is not intentional (that is, the shooting is accidental or otherwise unintended), the “totality of the circumstances” standard does not apply. The “totality of the circumstances,” by definition, can never justify an accidental shooting.

An accidental shooting which is caused, in whole or in part, by a defective trigger or other issue relating to the functionality of the firearm itself, raises a whole panoply of other legal issues; however, none involve the “totality of the circumstances.”

The manufacture or assembly of firearms – especially those used for law enforcement or other self-defense purpose – inherently involve legal risk. The first step in minimizing and managing legal risk is to have a clear understanding of the relevant legal theories of liability that apply in a given situation. Once that has been accomplished, we can begin taking substantive steps in the direction of legal risk management and asset protection.


Click here to: Contact Lapin Law Offices


Attorney Dallas TX 75244
Lapin Law Offices, P.C.
5001 Spring Valley Road, Suite 400 East
Dallas, Texas 75244
972. 292.7425



Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction, or since this publication may have changed statutorily or have been affected by judicial decision.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.
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Legal Defense of Self-Defense Shootings

4/19/2015

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Lapin Law Offices is a full-service, Dallas, Texas law firm.  We focus on asset protection, business law, civil litigation, criminal defense, estate planning, family law, probate, and real estate law.  Please visit us at: http://www.LapinLawTX.com or call us today at 972.292.7425.
Question:
What can we expect after a self-defense incident?  We have our concealed handgun licenses and we engage in various forms of firearms training on a regular basis; however, our focus has always been on physically surviving a self-defense incident and not on the legal aftermath of such incidents.

Answer:
“Defense of Self-Defense” is, in all likelihood, what will be needed after a use of deadly force incident. The objective of Defense of Self-Defense is not simply to be found “Not Guilty” of criminal charges or not liable for civil damages; the true objective is to never be prosecuted criminally or sued civilly.

Proper training to safely and responsibly carry concealed firearms involves many aspects. One aspect of that training which frequently is not given the attention it deserves is Defense of Self-Defense. As with all other aspects of firearms training, the time to begin one’s Defense of Self-Defense training is not after a deadly force incident, but rather, long before the incident ever occurs.

Basic firearms training usually includes instruction on firearms safety and marksmanship (before formally beginning the process of licensure training). Training to obtain a concealed carry license often includes a few hours in a classroom and a quick range qualification. However, anyone who believes that this minimal amount of required training is all that one needs, is seriously mistaken. Nevertheless, for reasons that we will endeavor to discuss in a future post, that is not a good or sufficient reason to increase the amount of training which is required to obtain a concealed carry license.

Defense of Self-Defense training will teach a concealed carry licensee how to better handle the aftermath and legal consequences of a shooting incident. Defense of Self-Defense training includes, among other things, obtaining an in-depth understanding of the law (beyond that taught in concealed carry licensing courses) that will be used to evaluate the propriety of one’s actions after a shooting. A proper understanding of the law will not only result in one knowing what to say (and not say) after a use of force incident, it will, more importantly, result in a greater understanding of when (and how much) force is lawful. This understanding, in turn, should then assist the concealed carry licensee in making appropriate decisions concerning whether, and how much, force to use in a given situation.

Although the legal contours of the constitutional right to carry in public are still being worked out in the courts, the law regarding use of deadly force is much more settled. It is this (mostly) settled latter body of law that the responsible concealed carry licensee will focus his or her attention.

Intellectual understanding and knowledge, however, are not enough. One should use that knowledge as a foundation upon which to base, grow and refine both their decision-making and practical shooting skills. This is done through regular, realistic training which is calculated to replicate, as much as is feasible, those real-world use of force situations that are most likely to be encountered.

Remember, the objective of Defense of Self-Defense is not simply to be found “Not Guilty” of criminal charges or not liable for civil damages; the true objective is (or at least should be) to never be prosecuted criminally or sued civilly.


Click here to: Contact Lapin Law Offices


Attorney Dallas TX 75244
Lapin Law Offices, P.C.
5001 Spring Valley Road, Suite 400 East
Dallas, Texas 75244
972. 292.7425


Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction, or since this publication may have changed statutorily or have been affected by judicial decision.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.
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    Lapin Law Offices is a full-service Texas law firm that provides litigation and non-litigation legal services throughout the State of Texas. 

    We focus on asset protection, business and contract law, civil litigation, criminal defense, estate planning, family law, firearms & 2nd Amendment law, probate, and real estate law.

    Call us at (877) 570-2200.

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