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.
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
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.
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