[note: this post contains some foul language that is relevant for describing a criminal escalation]
The public and its relations with law enforcement (LE) have strained over the last several years. This characterization is mild, as law enforcement officers (LEOs) have been deliberately targeted and killed. A lot of the difficulties with the public stem from unbalanced media representations. Without a doubt, LEOs have engaged in criminal acts against innocents, and they have either gotten away with it or been caught and punished. However, to think that all LEOs are bad is to stereotype a tiny representation as being reflective of the whole. LE has a challenging job, and I don’t think there is enough appreciation in the public’s mind for how difficult it actually is.
I believe as long as LEOs are considered separate from a community rather than a part of it, there will continue to be public relations problems. One of the benefits of living in a smaller community is that you likely know an LEO and their family. Sometimes this has downsides, at least when it did when I was growing up. If I got into trouble as a teenager, my parents usually found out about it before I even got home!
My book discusses LE interactions extensively, so I’ll be brief here. Two main issues exist for those carrying a concealed firearm (CCF).
- Do I tell an LEO about my concealed weapon during a traffic stop?
- What do I say to an LEO after a defensive gun use (DGU)?
I cover the first one in my book, so I’ll skip it here.
Answers for the second item are very controversial. Why? The reason is that self-defense is one side of a DGU coin. The other side of the DGU coin is aggravated assault. The difference between the two is not as secure as you think. I discuss several scenarios in my book where individuals believe they were in a self-defense situation but instead committed aggravated assault. In short, depending on how evidence is conveyed in court, your flipped DGU coin can quickly become weighted to land on aggravated assault. If your DGU-weighted coin lands on aggravated assault, you are looking at felony charges. In addition, some states have extra penalties for gun crimes, such as mandatory prison sentences. In sum, there is a steep price if your DGU coin gets weighted to land on aggravated assault. The only thing worse than that is if you weighted the coin yourself by talking to LE unnecessarily.
People who CCF and are involved in a DGU want clear and concise advice on what to say to LE. Criminal defense attorneys usually have that advice, which is to keep quiet. I keep an attorney on retainer through Attorneys for Freedom, which attorney Marc J. Victor owns. Here is what he says on the topic: https://attorneysforfreedom.com/should-i-talk-to-the-police-if-i-am-arrested-for-a-crime/. The point of view of saying as little as possible to police is backed up by another attorney, James Duane, in a widely seen YouTube video, Don’t Talk To Police, and book You Have The Right To Remain Innocent.
Challenging this view is Massad Ayoob. Ayoob is a veteran LEO, expert witness, author, and someone who has an excellent reputation. I have not read Ayoob’s books but I enjoy his articles when I run across them. His pieces are always thought-provoking, and this one is no exception. The article in question appears in the magazine Combat Handguns March/April 2023 called Silence vs. Loose Lips and starts on page 12.
Preliminaries
Before we get started, let’s clear up a few things:
- Over 80 percent of DGUs happen at home or on the home’s property. Both examples used by Ayoob are home defense examples. I discuss properly preparing the security of your home in my book. An adequately secured home will help prevent intruders, DGUs, and you from having to talk to law enforcement under challenging circumstances.
- James Duane’s book is not about DGUs. It is about innocent people who worsened their lives by talking to LE. It covers a lot of ground, both state and federal. His book is replete with real-world cases that, quite frankly, are heartbreaking. These aren’t one-off stories, either. A not-small percentage of innocent people have been sent to prison, and they only went to prison based on how LE interpreted their statements. These individuals were later exonerated primarily through DNA evidence. This fact should give you pause. I recommend purchasing Duane’s book to get the full impact of those stories.
Why should I worry? I didn’t do anything wrong!
Let’s start by asking: “Why should any civilian be concerned about talking to law enforcement if they did not do anything wrong?” Then, I’ll give two reasons why a civilian should be concerned and back up my statements with quotes from James Duane’s book.
- LE has no obligation to be honest with you about anything. An LEO can show up at your door, fabricate a story, lie about your loved ones, and wait to hear what you say. James Duane comments:
Even if you are innocent, the police will do whatever it takes to get you to talk if they think that you might be guilty. That includes saying just about anything, no matter how dishonest, to help persuade you that it might be in your best interest to give them a statement. And the courts will generally say whatever they need to say to excuse the dishonesty on the part of the police, even if the courts have to say something that is just as dishonest. […] If a used car salesman engaged in this sort of deception, he would be thrown behind bars. – You Have the Right to Remain Innocent (p. 40). Little A. Kindle Edition.
- Any communication you have with LE can be used to prosecute you but not used for your defense. Furthermore, the prosecution can be selective about what to quote you on and place them out of context. You cannot defend against this in any way, shape, or form. Again, from James Duane:
If you talk to the police for three hours and give them three hundred details that would all tend to support your defense, and you only mention three details that might help get you convicted, the prosecutor has every right under the law to ask the officers to only tell the jury about the three details that seem to implicate you in the crime. – You Have the Right to Remain Innocent (p. 43). Little A. Kindle Edition.
To wrap up this section, let’s have one final quote from James Duane
In other words, talking to the police is at best a no-win situation for someone suspected of committing a crime. – You Have the Right to Remain Innocent (p. 43). Little A. Kindle Edition.
The Dangers of Silence
Ayoob titles his article Silence vs. Loose Lips. Based on the previous section, we can understand the problems with loose lips. Are there any problems with silence? It turns out there are. Let’s hear from James Duane.
In the case of Salinas v. Texas, decided in 2013, the five most conservative justices on the court (the only five appointed by Republican presidents) held for the first time that the silence of a criminal suspect, at least if the suspect is not in custody, is logically relevant evidence that is admissible against the suspect at trial and may be used to help persuade the jury that the suspect is guilty! Those five members of the court agreed that the State of Texas was therefore within its rights to prove and argue that a young man named Genovevo Salinas was probably guilty of a crime because he remained silent when the police asked him a question about it. – You Have the Right to Remain Innocent (p. 93). Little A. Kindle Edition.
What about pleading the 5th? More problems, unfortunately. More from James Duane:
The same year the Supreme Court decided Salinas, the Department of Justice also helped persuade another federal court in another case that it should be lawful and permissible for a prosecutor to argue that anyone who explicitly asserts the right against self-incrimination is also admitting guilt. – You Have the Right to Remain Innocent (p. 107). Little A. Kindle Edition.
Furthermore:
Even if you take care to say, “I wish to invoke my right under the Fifth Amendment against self-incrimination,” you have no guarantee that the agent will not testify months later at your trial that “he said he would not talk because the truth would incriminate him.” – Duane, James. You Have the Right to Remain Innocent (p. 113). Little A. Kindle Edition.
It is essential to remember for those who are used to watching crime dramas on television or movies that there are usually several months (if not longer!) between your LE conversation and your trial. As a result, the LEO has probably forgotten most of what you said and now has to review some notes that may be good or not.
Now What?
At this point, talking is bad, and being silent is bad. However, Ayoob has a 5-point recommendation if you are in a DGU (taken from the article but abbreviated). He starts when LE is on the scene:
Point 1: Explain the active dynamic, which is what the opponent did to make you use force. […].
Point 2: Confirm that you were the intended victim […].
Point 3: Point out evidence […].
Point 4: Point out witnesses […].
Point 5: Only at that point, request an attorney, cease to answer questions and say something such as “Detective, you’ll have my full cooperation after I’ve spoken with counsel. I wish to speak with an attorney now.”
I recommend something similar in my book. The US Concealed Carry Association (USCCA) also does. Here is what they say (https://www.usconcealedcarry.com/blog/what-to-say-to-911-after-a-self-defense-incident/), which covers more than the 911 call:
- Identify yourself clearly as the victim of an attack.
- Clearly communicate who the person was that attacked you, where he or she fled to and if he or she is armed with any weapon, such as a firearm.
- Follow all police instructions when they arrive on the scene, as it is critical for you to survive that next encounter.
- Point out any major pieces of evidence that the police need to be aware of, such as the weapon the attacker used that forced you to act in self-defense.
Unfortunately, I don’t think Ayoob’s examples are as relevant as they could be to his or USCCA’s points. Therefore, I will create a fictitious scenario and walk through it with a happy ending. Then, I will take that same scenario and show how it becomes a disaster. I’ll end the fictional parts with a # mark.
DISCLAIMER: I’m not a criminal defense attorney or an LEO. I also did not stay at a Holiday Inn Express last night. Therefore, what follows is not legal advice.
You are at home with your wife and baby. You fall asleep, and your wife wakes you up around 1 am and tells you the baby is sick. The baby’s symptoms are very similar to what she had a few months ago, and your wife knows what medicine will do the trick. So you throw on some clothes and head down to a 24/7 drug store about 10 minutes from your house.
As you round the corner to the store, you see two figures outside in the distance. Both appear to be smoking. As you approach, one begins walking to the store entrance, and the other turns and walks a few steps away. You park the car, open the door and step out of the vehicle.
You are rushed by an attacker who uses their body against your car door. The attacker uses the sidewalk’s edge for leverage, and the door crushes one of your legs, immobilizing you. At the same time, another attacker slides up on the car hood and swings a quart beer bottle at your head. Luckily, he missed, and the quart bottle shattered on the top of the car spilling stale beer all over you. The 2nd attacker is desperately trying to grab your shirt and pull you up so he can punch you out. At this time, you are able to pull your EDC and fire a round at the 2nd attacker. The 2nd attacker is hit and falls. The attacker pushing on the door flees. You try and stand but realize your leg may be broken as it cannot support your weight.
Realizing you are especially vulnerable, you get in your car, shut the door, and lock it. You can see the 2nd attacker motionless on the ground. You cannot see anyone outside the store and decide to call 911. You are trying to remember what to say as the phone is ringing.
#
Here are some 911 options.
Option 1: “There has been a shooting at Store Z, at the corner of Street X and Street Y. Please send the police.”
Option 2: “I was involved in a shooting at Store Z, at the corner of Street X and Street Y. I was attacked by two men, one is down, and the other has fled. Please send the police.”
Option 3: “I was involved in a shooting at Store Z, at the corner of Street X and Street Y. I was attacked by two men, one is down, and the other has fled. I do not know if the man that fled was armed. He was wearing a black hoodie, jeans, and white shoes. Please send the police.”
Option 4: “My name is John Doe. I was involved in a defensive shooting at Store Z, at the corner of Street X and Street Y. I was attacked by two men, one is down, and another one has fled. I do not know if the man that fled was armed. He was wearing a black hoodie, jeans, and white shoes. He fled towards Street X. Please send the police.”
Option 5: “My name is John Doe. I was involved in a defensive shooting at Store Z, at the corner of Street X and Street Y. I was attacked by two men, one is down, and another one has fled. I do not know if the man that fled was armed. He was wearing a black hoodie, jeans, and white shoes. He fled towards Street X. I believe another man that may have been a witness is in the store. Please send the police.”
Option 6: “My name is John Doe, and I have a concealed carry permit. I was involved in a defensive shooting at Store Z, at the corner of Street X and Street Y. I was attacked by two men, one is down, and another one has fled. I do not know if the man that fled was armed. He was wearing a black hoodie, jeans, and white shoes. He fled towards Street X. I believe another man that may have been a witness is in the store. I am also injured. Please send the police and an ambulance.”
Option 7: “My name is John Doe, and I have a concealed carry permit. I was involved in a defensive shooting at Store Z, at the corner of Street X and Street Y. I was attacked by two men, one is down, and another one has fled. I do not know if the man that fled was armed. He was wearing a black hoodie, jeans, and white shoes. He fled towards Street X. I believe another man that may have been a witness is in the store. I am also injured and cannot walk. I am inside my brown car parked in front of the store. Please send the police and an ambulance.”
Write down your preferred option. Then, you can see how it turns out later. Back to the scenario:
You’ve put your legs in the car (a painful process!), locked the doors, and rolled up the windows. You placed your EDC in the passenger seat. You see LE pull into the parking lot, roll down your window, and place your hands up through the window. The LEO approaches you, their weapon drawn, and asks who you are.
You say: “My name is John Doe, and I have a concealed carry permit. I called 911. I was involved in a defensive shooting. I was attacked by two men, this one is down, and another one has fled. I do not know if the man that fled was armed. He was wearing a black hoodie, jeans, and white shoes. He fled towards Street X. I believe another man that may have been a witness is in the store. I am also injured, that is why I am in my car. I can’t stand or walk, but I’m not bleeding. I think my leg may be broken. It got pinned in the door.”
The LEO says: “Where is your weapon, sir?”
You respond: “On the passenger seat.”
The LEO says: “I will need to take possession of it. I’m moving towards the passenger door. Do not move. Unlock it on my command only.”
The LEO takes possession of your firearm. At this time, the LEO tells you to keep your hands up, and the LEO checks out the man on the ground. The LEO comes back and asks for your identification. You provide it, and it checks out. At this point, the LEO asks you about what exactly happened. An ambulance arrives and begins working on the man on the ground. They indicate another ambulance is on the way.
The LEO notices about the smell of beer in the car. You explain that it must have been stale beer from the quart beer bottle the man swung at you. The LEO asks if you mind taking a quick breathalyzer. You agree.
The 2nd ambulance pulls up, and the LEO says, “For the EMTs to work on you in the car, I’ll need to do a quick search to ensure there are no other weapons. Is that ok?” You say, “Sure.” He begins searching when the EMTs approach your door and ask about your condition. They ask if you can get out of the car with assistance and get on a gurney. You say that you can, and they help you out. The LEO walks over to discuss the attacker’s condition with the EMTs. Other LEOs arrive, and he sends them to talk with the clerk in the store and check around the property.
When the LEO arrives, you are getting ready to be loaded into the ambulance. He says he has a few more questions for you. You tell the officer that, given the circumstances, you need a lawyer, and he’ll have your full cooperation after talking with the lawyer. The LEO respects your decision and leaves you alone.
The day you are released from the hospital, the LEO you talked with shows up. He says they pulled the video from the store, which backs your story. It looks like your attackers were looking to carjack someone that night. They even had a story worked out in advance if things went south. Their friend, who worked at the store, had told them the camera’s recorder was broken, so there wouldn’t be any video. It looks like he was wrong. They were pretty surprised when we showed them the video. The LEO wanted to know if you were willing to testify against your attackers as the attacker you shot would make a full recovery. You say you will testify against them.
#
We see that John Doe did some things right and some wrong, which will happen to most people in a very stressful event such as this attack.
The Twist
In this example, everything is exactly the same except for two things. One, there is no store video; two, you are arrested when you are released from the hospital. This story resumes when you are sitting with the detective (D) in the police station, and the detective is describing the evidence against you (JD).
D: Mr. Doe, I have you as saying one of your attackers was a man wearing a black hoodie, jeans, and white shoes, and fled towards Street X. Is that correct?
JD: I believe that is correct, yes.
D: We apprehended a woman on Street Y. She was wearing a green hoodie, jeans, and gray shoes.
JD: Really? Was she the attacker?
D: Well, she was there. According to her, however, you caused all the problems.
JD: What? Hell, just pull the video from the store.
D: There is no video. The store’s recorder was broken.
JD: What? Look, I was attacked.
D: We talked to the woman and the man you shot separately. Their stories agreed. They said you pulled up and wanted to buy drugs from them. They told you they didn’t sell drugs, and you became belligerent. You called the woman a cunt. Her boyfriend was walking to your car to confront you about it when you pulled your gun. The boyfriend thought you would shoot his girl, so he picked up a beer bottle and tried to knock you out. You shot him instead.
JD: That is total bullshit.
D: Well, it turns out that your breathalyzer reading was about one-third of the legal limit.
JD: Damn – I forgot I had a glass of wine with my wife just before I went to bed. It was just an honest mistake.
D: When you consented to a vehicle search, the LEO found a baggie with half a painkiller.
JD: That is, like, over a year old. When my wife discovered she was pregnant, she wanted to surprise her parents. Unfortunately, I had wrenched my back at work. The only way I could survive the car trip was to take half a painkiller.
D: I take it you have a prescription for them?
JD: Um, no. Someone I know gave one to me so I could make the trip.
D: Well, you know, druggies like to hang out with druggies. Guess what else? That eyewitness you said went in the store, so such an eyewitness existed. No one had purchased anything from the store for half an hour before you arrived.
JD: Look, I saw someone approaching the store’s front. Perhaps he doubled back and was my attacker.
D: Now, the eyewitness is your attacker? Are you sure it was a guy? I mean, you don’t have a stellar record so far.
JD: Look, I don’t quite remember what I said. These are just honest mistakes.
D: Guess what? Everything you said is in the 911 call. That is public information. Do you know what else was in the 911 call? What you said before the operator picked up. If you didn’t know, 911 calls begin recording even before you get connected to an operator. You kept saying to yourself, “What do I say?” repeatedly.
JD: I was trying to remember my concealed carry training regarding 911.
D: Or trying to fake a story.
JD: That is not true!
D: Here is what I think happened. I think you had some wine with your wife, maybe got a little buzzed, maybe got to thinking some painkillers would go good right now. Your baby was sick, and you went out to get medicine, but you realized half a painkiller wouldn’t do the trick that evening. So you approached two people who you thought could sell you some. When they couldn’t, you blew a gasket. The situation escalated, and you ended up shooting someone. To try and cover your tracks, you gave false information to the police and figured the guy you shot would die. You get away free if we don’t find the other witness. That’s why you described the witness completely wrong and even misled us about where she was headed. As you call them, these “honest mistakes” don’t seem so honest, do they?
#
In the absence of hard evidence, other evidence must be used, and sometimes that could be distorted. For example, depending on the US State, John Doe is looking at serious prison time. When he gets out of prison, his wife may have divorced him, and his kid is calling someone else dad.
In the good version, the hard evidence trumped the other evidence. The LEOs concluded that you simply made some honest mistakes. As a result, a man was reunited with his family, and two criminals were taken off the street. While there are some things they could follow up on with you, there are much bigger fish to fry.
Honest Mistakes versus Lying versus Hiding Something
Looking back on your actions in a stressful situation, you probably didn’t do everything according to the script. It is especially true with ordinary civilians, who probably experienced hardcore violence for the first time.
Who interprets whether something said is an honest mistake or a lie? Well, the LEO does. Therein lies the problem, as it is not objective but subjective. Your LEO can have some of the following characteristics that influence their perception of what you say:
Condition: Fresh, Exhausted
Attitude: Open, Annoyed
Experience: Rookie, Veteran
If an LEO believes you are hiding something, guilty, or lying, they have tremendous power to try and get you to say something incriminating. If you doubt this, read the quotes from James Duane earlier in this post. Duane also points out in his book that once an LEO believes you are guilty, they are subject to confirmation bias. All the evidence they see confirms that you are guilty. Any evidence that does not is discounted. Hard evidence is the only antidote.
What should have happened?
Upon seeing two young people at 1am at a corner convenience store, John Doe should have kept driving and found another store. Violent crime is primarily a young person’s game. Most ordinary civilians are either working (depending on their job) or sleeping at 1 am – they aren’t hanging out smoking in front of a store. Keep in mind a corner store has a lot of ways for your attackers to flee the scene of a crime.
If John Doe felt he had to stop because of his kid, he should have worn a body cam. I discuss these things in my book. Unfortunately, I do not know of any people who CCF and use a body cam – it is not typically discussed. I’m currently evaluating one that may be promising, and I’ll post something on it later if it turns out well. Also, if your state permits it, one-party consent to audio recording allows you to record conversations. So if you don’t want the bulk of a camera, you may still benefit from recorded conversations that could help your case.
However, many civilian violence situations involve an escalation. This fact is why I recommend de-escalation training. You don’t want to be recorded as encouraging the fight. Also, you don’t want to inform LE about your video/audio recording. You’ll be discussing any of your recordings with your attorney.
Lastly, after John Doe told the officer what happened, he should have invoked his constitutional rights. You can read Marc J. Victor’s statement at the link I previously listed for Attorneys for Freedom. You may want to edit out mention of the 5th amendment based upon what Duane has said, but otherwise, John Doe’s innocence would have been better protected from badly interpreted circumstantial evidence.
Counterpoints to Ayoob
Ayoob wants to counteract those who did not read Duane carefully and remind them that silence is not your best option. However, he says a few points that I feel are controversial.
Ayoob: “The advice to never talk to the police comes primarily from defense attorneys who know a huge percentage of their clients are guilty as charged […].”
Counterpoint: LE talks to guilty people the majority of the time. Is it not possible that this fact influences their interpretation of the evidence? The more evidence available, the more it may be interpreted as the statements of the guilty: the more statements, the more guilt, even when the person is innocent.
Ayoob: “If an innocent person follows advice for guilty people and acts like a guilty person, they’ll end up with a guilty man’s verdict.”
Counterpoint: In Ayoob’s own example, the silent man spent an “uncomfortably long time behind bars” before getting a hearing. However, he didn’t go to trial and wasn’t convicted even when he was silent. I’m not saying the man took the best approach, but there is a difference between waiting for a hearing and being convicted and going to prison.
Ayoob (quoting from his 1980 book): “Explain to the arresting officers that you’re not a punk taking the Fifth […].”
Counterpoint: You should never feel guilty about involving your constitutional rights. Yes, as Ayoob and Duane point out, there are problems with silence and problems with invoking the 5th amendment. However, you can use Marc J. Victor’s statement he recommends, but just leave out the 5th amendment (but keep the other amendments!).
Duane points out that when LE shoots someone, they invoke their constitutional rights. I doubt that they follow the 5-point plan laid out in the article (but I’m happy to be proven wrong). Duane also points out that LEOs, attorneys, and anyone involved in the legal system tell their children never to talk to LE. If true, this advice contradicts Ayoob’s own points.
Unfortunately, Ayoob’s statements in the article seem to contradict Point 5 of invoking your constitutional rights. After reading the article, one wonders why Ayoob even recommends invoking your constitutional rights. After all, aren’t you acting like a guilty person?
Hopefully, a future article from Ayoob can expand on a few things:
- Does an LEO follow the 5-point plan if they are involved in a fatal shooting? If not, why?
- What do LEOs tell their children about talking to LE?
- Given what was stated in the article, why is Point 5 necessary? What does it prevent?
As you can see from the length of this post, Ayoob’s articles are very thought-provoking and provide great information for ordinary civilians. While I may have some disagreements, they were well worth thinking through.