If a person shoots and kills a person in self defense....

[Frank Ettin]

...There seems to be one element to this discussion that is missing that might entice a shooter who acted in self defense to call in the shooting. The police could look at the evidence and decide not to even charge the shooter with anything - if it's a clear cut case. Or could they? From what I've read, most folks who clearly shoot in self defense are never even arrested or charged with a crime. Is this correct, or am I wrong on this point? If there is a good chance that a shooter who clearly shot in self defense will not be arrested or charged, if he promptly calls 911 and cooperates with the police, then this is a huge incentive to take this path rather than the other. But, if you can plan on being arrested, charged, and tried regardless - I still think there is a decision to be made of whether or not to even report the shooting.

It does seem that if you use a gun in self defense, most of the time the matter will not wind up going to trial. This is based on reports of DGU published in the press and such sources as the NRA's "The Armed Citizen" column, and similar sources.

That doesn't necessarily mean that you won't get detained, or even arrested, that you won't get "taken downtown", that you won't want a lawyer. It also doesn't mean that you won't feel like you've "been put through the wringer" to some extent.

But I'm convinced that if you handle the aftermath properly, and that includes reporting the event right away, your chances of a good outcome are substantially improved. And in most cases, when the prosecutor evaluates the situation he will conclude that there is no case to take to trial.

...If the shooter decides not to report the shooting death, perhaps because there are no witnesses or whatever reason, then he has no immediate concerns (legally speaking) unless and until he is somehow connected with the shooting. Then (I believe) the prosecutor will have to jump through all sorts of hoops to attempt to prove all of the elements of his case,....

Aside from that fact that is something an honest, upstanding individual would not even consider doing, what would your life be like if you did something like that? You'd be constantly looking over your shoulder wondering when the police would catch up with you. You'd never know if you were in the clear. You'd never know whether or not there were witnesses you didn't see or some other pieces of evidence that will ultimately connect you to the shooting.

What I understand from discussions with Massad Ayoob is that things often don't turn out well at all for folks who run or folks who have lied.

 

[Brian Pfleuger]

Skans,

I think that you've got to look at this from the opposite perspective. Let's say that you're involved in an absolute 100% legitimate SD shooting but you do not report it.

What's going to happen when the body is found or the bad guy goes to the hospital? There's going to be an investigation, they're going to look for witnesses, security cameras, they're going to get a statement from the BG if he lives and it's NOT going to be "Yeah, I attacked this guy and he defended himself." If the guy is dead then the police have an unsolved murder on their hands. Odds are that they will eventually find you. They're not going to be happy that you didn't come forward. There WILL be a presumption of guilt. I promise you that. Innocent until proven guilty is a nice concept.... anyone remember the Duke lacrosse case?

I agree that there could be a danger of "self-incrimination" to some degree but the other side of the picture is worse. Much worse.

 

[Mas Ayoob]

What Fiddletown said.

Departing without reporting kicks in the legal principle most judges will allow to be argued, that "Flight Equals Guilt." It will create a vastly higher mountain for your defense team to climb.

 

[Skans]

Departing without reporting kicks in the legal principle most judges will allow to be argued, that "Flight Equals Guilt." It will create a vastly higher mountain for your defense team to climb.

Mr. Ayoob, thank you for your reply. I know that you are an expert in this area. But, what about the fact that by reporting the incident and claiming self-defense, you have wiped out your 5th Amendment right against self incrimination as well as making the prosecutor's case against the shooter by eliminating his burden of presenting evidence on several elements necessary for him to estabish his case?

Depending on the circumstances surrounding the shooting, there is certianly no guaranty that charges won't be brought against the shooter and at least a possiblity of trial and conviction for some crime. I understand that with a well trained shooter, this is not a likely outcome, but what if the shooter is not well trained? What if the bad guy didn't actually have a weapon, just pretended to have one or something else along these lines?

It seems to me that it is a valid discussion to have with regard to not reporting the incident. Assuming that the shooting turns out to be questionable, is the shooter breaking another law (depends on location, I gues) if he simply flees and doesn't report the incident?

I'm just trying to take an honest, unbiased look at this situation. I am not encouraging anyone to break any laws. Every SD shooting is going to be different. Some are going to be more questionable than others. Is it never valid to even consider not reporting - IF not reporting doesn't constitute the breaking of another law?

 

[OuTcAsT]

I understand that with a well trained shooter, this is not a likely outcome, but what if the shooter is not well trained? What if the bad guy didn't actually have a weapon, just pretended to have one or something else along these lines?

I would think that your own testimony about the circumstances, is going to be paramount to your defense in this type of situation.

If the circumstances are questionable from the beginning, not reporting it could only make it worse...IMHO.

 

[Frank Ettin]

...what about the fact that by reporting the incident and claiming self-defense, you have wiped out your 5th Amendment right against self incrimination as well as making the prosecutor's case against the shooter by eliminating his burden of presenting evidence on several elements necessary for him to estabish his case?...

Welcome to real life.

But seriously, sometimes things aren't easy. Sometimes doing the right thing is difficult and has risks.

But from a practical perspective, you were unlucky enough to have found yourself in a situation in which you believed that you had to use lethal force to save your life, and you were lucky enough to have prevailed. Now, do you want to do whatever you can to maximize the chances of things turning out satisfactorily for you so you can get on with your life, or do you want to live as a fugitive, always wondering when the Juggernaut of the law is going to catch up with you?

...I understand that with a well trained shooter, this is not a likely outcome, but what if the shooter is not well trained?...

It's been said, "If you think education is expensive, consider the cost of ignorance."

...What if the bad guy didn't actually have a weapon, just pretended to have one or something else along these lines?...

Well for one thing, you might still have a good justification claim. You need to remember that the legal standard is basically whether a reasonable person in like circumstances and knowing what you know would have concluded that lethal force was necessary to prevent otherwise unavoidable immediate death or grave bodily injury to an innocent. So a claim of self defense can still stand even if the assailant didn't have a weapon if a reasonable person would have believed that he did. People have successfully claimed self defense when the assailant had an unloaded gun, a toy gun or even just a hand in his pocket -- if the circumstances would have led a reasonable person to believe that assailant actually had a lethal weapon and was about to use it.

In the Diallo case, several NYC police officers were tried for manslaughter after shooting a person who pull out his wallet. They were acquitted. They were acquitted because they were able to demonstrate to the satisfaction of the jury that under all the applicable circumstances a reasonable person would have believed that the object that Mr. Diallo pulled was a gun. They were able to do that because they were able to be convincing and credible witnesses for themselves (and because of good training and good legal counsel).

You need to protect your credibility. OuTcAsT had it absolutely right when he wrote

...If the circumstances are questionable from the beginning, not reporting it could only make it worse...

...It seems to me that it is a valid discussion to have with regard to not reporting the incident....

Actually, I have to disagree with you. I understand that an honest person may panic and run. And if that happens, sorting out the mess, if it's even possible, will be a huge and uncertain job. So it does make some sense to consider how legal counsel might try to deal with such a horrible situation.

However, I don't see how a responsible citizen and gun owner could seriously contemplate failing to report an incident as a possibly legitimate conscious option for dealing with the aftermath of a self defense event.

 

[Bartholomew Roberts]

It seems to me that it is a valid discussion to have with regard to not reporting the incident.

Putting aside for a moment, all the many, legitimate reasons why not reporting a self-defense shooting is a seriously bad idea, let's look at this from a purely cost-benefits perspective.

So let's assume a scenario where we decided it was in our best interest to make the prosecutor prove every element of his case. Our absolute best outcome is that police never link us to the shooting at all.

Pros: We avoid all the unpleasantness associated with an investigation and the legal proceedings.

Cons: We live the rest of our lives wondering whether what we are going to do today is somehow going to link us to that incident or whether something we have already done will link us to that incident.

This is pretty much the absolute best we can hope for out of not reporting a self-defense shooting.

So what are the chances police will never link us to the crime? Well, not good it turns out. Homicide has the highest clearance rate of any serious crime nationwide. In 2004, 62.6% of all homicides were cleared by arrest nationwide. This means that a person was arrested, charged, and turned over to the court for prosecution. Note that depending on where you live, the rate might be even higher. Even assuming that some of those are incorrectly cleared, you are looking at a better than even chance that you will still be linked to the crime.

Think about that for a second. You DID commit all the elements of that particular crime. There WILL be evidence of it. And in better than half of the cases nationwide, the police are able to figure out enough to charge you with the crime and take you to court.

So my problem with your cost-benefits analysis is:

1. You face a better than even chance of not avoiding the unplesantry of investigation while at the same time making the unpleasant aspects much, much worse.

2. I think you place way too much value on forcing the prosecutor to prove the elements. You did actually do those things. There will be evidence of it and police will find at least some of it.

3. You assume a "weakened" self-defense claim, when in all probability, you have destroyed any chance at a successful self-defense claim (which was also your strongest defense). At the very best, you've weakened your strongest argument to gain a few extra weak arguments.

In order to claim all these "advantages" by not reporting, you are going to have to say the equivalent of "I wasn't there but if I was there I didn't shoot him; but if I shot him, it was self-defense." Does that sound like a winning argument to you?

 

[Skans]

In order to claim all these "advantages" by not reporting, you are going to have to say the equivalent of "I wasn't there but if I was there I didn't shoot him; but if I shot him, it was self-defense." Does that sound like a winning argument to you?

First, let me say that I do like your cost benefit analysis. You nicely make some very valid points.

However, with regard to the above statement, I have to dissagree. Things like this the way you state. First the shooter would have to get caught. Second the shooter would have to get an attorney. The attorney would have to evaluate the facts in light of self devense v. making the state prove its case. Depending on what the attorney thinks is best, the shooter could confess and claim self defense or not say anything and make the state prove its case.

 

[OldMarksman]

First the shooter would have to get caught.

Want to bet against that? I wouldn't even consider it. They'll be looking for him until the case is closed, and there's no statute of limitations.

Depending on what the attorney thinks is best, the shooter could confess and claim self defense or not say anything and make the state prove its case.

I'm not sure what kind of attorney would even consider the former, but once the shooter has been caught, proving that he was in fact the shooter should be a slam dunk. "Make the state prove its case"? Come now.

Even if there were no witnesses and no security cameras--even if his cell phone did not place him near the scene of the shooting at the time of the shooting, which would help in catching him and destroy his credibility in the event of denial--the forensic evidence should nail it. Fibers, identifiable bullets and perhaps shell casings, possible gunshot residue, traceable material in his shoe treads tire treads and automobile carpets, foot tracks, tire tracks, you name it, all on top of a complete lack of credibility on the part of the defendant...where's the challenge? What's the chance?

Far better to be the first to report it and go the self defense route, unless of course the sooting was not really justified under the law.

 

[Bartholomew Roberts]

The attorney would have to evaluate the facts in light of self devense v. making the state prove its case.

My point is that unless you are willing to make the contradictory argument I stated ("I wasn't there but if I was there I didn't shoot him; but if I shot him, it was self-defense.") you are still going to be "giving" the prosecutor something that he would otherwise need to prove.

Depending on what the attorney thinks is best, the shooter could confess and claim self defense or not say anything and make the state prove its case.

If you didn't report the shooting, then the attorney's options are pretty limited. You have already put a big hole in any self-defense claim by not reporting. You make it sound like he still has choices; but by not reporting you've dramatically limited his practical choices. Yes, he can still argue self-defense; but the chances of it being useful are extremely slim. If you don't believe me, you can access Westlaw by credit card and see how well that strategy has played out in the past.

 

[JohnKSa]

Depending on what the attorney thinks is best, the shooter could confess and claim self defense or not say anything and make the state prove its case.

No, that is not correct and this is what everyone has been trying to tell you.

If you don't report then your claim of self-defense when/if caught is very unlikely to succeed. So the first option you list isn't really an option at all. Your attorney (if you get a decent one) won't think that is best unless it's clear that they have enough evidence to convict you of murder and your only chance is a "hail mary" plea of self-defense.

So what it amounts to is that by not reporting you are hoping that:

1. You won't get caught.
2. If you do get caught (which is likely based on homicide statistics) there won't be enough evidence to convict you of murder. This is not a good bet because if they caught you they did so on the basis of evidence tying you to the homicide.
3. If you do get caught and there is enough evidence to convict you of murder that your jury will be understanding enough to let you off even though you acted like a criminal by fleeing the scene of the crime and forcing the law to track you down like a criminal. AND you have to hope that some evidence that supports your claim of self-defense is available even though the scene likely wasn't preserved immediately given that no-one reported the crime in a timely fashion.

Reporting the crime yourself is probably one of the best ways you can insure that things turn out well for you.

Besides, the first step in this whole discussion has been sort of glossed over. The first step is to verify that it's legal NOT to report. That should have been done first before getting into the hypothetical that followed.

Here's what everyone is forgetting in all this. If you shot the person legally then the person you shot had to have been committing a felony in order to provide you with justification for using deadly force. Failing to report the attacker's felony is a crime in and of itself.

 

[OuTcAsT]

Failing to report the attacker's felony is a crime in and of itself.

Good point, and spot-on john!

 

[Frank Ettin]

...2. If you do get caught (which is likely based on homicide statistics) there won't be enough evidence to convict you of murder. This is not a good bet because if they caught you they did so on the basis of evidence tying you to the homicide.
3. If you do get caught and there is enough evidence to convict you of murder that your jury will be understanding enough to let you off even though you acted like a criminal by fleeing the scene of the crime and forcing the law to track you down like a criminal. AND you have to hope that some evidence that supports your claim of self-defense is available even though the scene likely wasn't preserved immediately given that no-one reported the crime in a timely fashion....

John has very nicely outlined why, if you run and get caught, (1) self defense is likely to be your only chance; and (2) your self defense claim, at the late date of your arrest, is most likely going to fail. Let's face it, while your self defense claim may not be DOA, it is in a coma, on life support with a priest just outside the door ready to administer the last rites.

But let's explore another part of the equation. Do you have a reasonable chance of evading capture?

Bartholomew Roberts pointed out the almost 40% of homicides aren't solved. But what kind of killer is likely to fall into that lucky 40% who get away with it? Is it going to be the person who lives in the criminal subculture, more or less inured to the commission of crimes, used to running and hiding from "the law"? Or would it be the ordinary, honest person with a home, family and job, with honest friends and some standing in the "straight" community? If you had just shot someone to death, could you just go home to your family and friends as if nothing had happened? Could you go to your job the next day as if nothing had happened? Are your ties to the honest world so tenuous that you could walk away from everything you're used to?

Even trained police officers forced to shoot someone in the line of duty usually suffer a range of significant, adverse psychological effects. "...[M]ost endured at least some sort of psychological, emotional,or physical discomfort at some point, and some suffered severe negative reactions such as depression and suicidal despair." (David Klinger, Into the Kill Zone, Jossey-Bass, 2004, pg 203)

And if you kill, it is likely, unless you are a sociopath, that you will feel guilt. Studies show that even soldiers who kill in combat, where killing is expect of them, often feel guilt. "The resistance to the close-range killing of one's own species is so great that it is often sufficient to overcome the... instinct for self-protection...The soldier in combat is trapped within this tragic Catch-22. If he overcomes his resistance to killing...he will be forever burdened with blood guilt...." (David Grossman, On Killing, Back Bay Books/Little, Brown and Company, 1996, pg 87) "When soldiers do kill the enemy....Immediately after...the soldier goes through a period of euphoria and elation, which is usually followed by a period of guilt and remorse...." (Grossman, pg 111)

Kathy Jackson ably describes the emotional and psychological travails one is likely to experience after having gone through a violent encounter that he has reported and for which he has accepted responsibility. (see Mark Walters and Kathy Jackson, Lessons from Armed America, White Feather Press, 2009). She also points out that these effects can be worse for the private citizen, noting "While military and law enforcement personnel tend to have supportive peers, ordinary citizens do not often enjoy the same advantage to the same extent...." (Walters and Jackson, pg 174) Ms. Jackson also notes Massad Ayoob's concurrence: "Law enforcement officers generally cope better with the aftermath of violence better than others do. Ayoob attributes this to the fact that cops have a supportive peer group already in place..." (Walters and Jackson, pg 177)

Okay, so the ordinary citizen who has killed another person in what he believes to have been self defense is very likely to suffer a number of significant emotional reactions, including guilt. Supportive family and friends can be a substantial help in dealing with these effects.

But you have just killed someone and ran. You dare not tell your spouse. You dare not tell your friends. Would you burden them with such a secret? Could you be sure that someone to whom you have looked for support might not accidentally give you away?

So I ask again: If you had just shot someone to death, could you just go home to your family and friends as if nothing had happened? Could you go to your job the next day as if nothing had happened? Are your ties to the honest world so tenuous that you could walk away from everything you're used to?

 

[Skans]

Failing to report the attacker's felony is a crime in and of itself.

Perhaps in some states, but certainly not in all. There is no criminal penalty for not reporting crimes in Florida, New York and a number of the other southern states. I believe the majority of the States are that way, and I'm not sure which ones actually require crimes to be reported.

I don't know the law(s) on whether or not it is a seperate crime not to report a self-defense shooting a that the shooter himself was involved in. I suspect there is no such law(s), but I really don't know the answer to this.

 

[Conn. Trooper]

The 5th Amendment right to not incriminate yourself would not really apply here. What would you say that would incriminate you? I shot someone in self defense? It was a legit justified shoot? Thats not incriminating, its clearing yourself. If the shoot was questionable or an outright bad shoot, then you would be incriminating yourself.

As others have posted, report it and explain the basics of what happened and steer the investigation towards self defense.

 

[Frank Ettin]

Exactly how many criminals are shot in the United States each year ?

I"m not sure anyone has that number. But according to the FBI Supplemental Homicide Data (http://www.fbi.gov/ucr/cius2007/index.html), in 2007, there were 388 justifiable homicides by firearm by LEOs, and 198 justifiable homicides by firearm by private citizens.

Data is available from those reports for justifiable homicides for the years 2003 to 2007, broken down by weapon, separately for those committed by LEOs and those by private citizens.

 

[Skans]

Bartholomew Roberts pointed out the almost 40% of homicides aren't solved.

I've always heard that the number of unsolved homicides is much higher, especially for those not involving domestic or family disputes, but I can't verify this. Don't forget, most self-defense shootings are going to involve a person that the shooter doesn't know - just some person who probably attacked for financial gain.

And if you kill, it is likely, unless you are a sociopath, that you will feel guilt.

As I've never experienced such a thing, I'm obviously speculating on this, but I'd think that the fear of imprisonment could cause a person to muster up whatever it takes to suppress those feelings of guilt and get on whith his life in an ordinary fashion. Don't forget, soldiers and officers who kill in the line of duty have no fear of getting caught or being imprisoned. I think fear for self trumps guilt for harm done to others.

So I ask again: If you had just shot someone to death, could you just go home to your family and friends as if nothing had happened? Could you go to your job the next day as if nothing had happened? Are your ties to the honest world so tenuous that you could walk away from everything you're used to?

Me personally? I don't know nor do I ever care to find out. But, I can only suppose that if I were in a situation where I (for whatever reason) chose to not report a self-defense shooting, that yes, I could do those things. Or, at least I think I could, if it meant saving my life, saving the life that I worked hard to create, saving my family from grief, etc. I think you'd be suprised at what a man can do when faced with the fear of losing everything he's got, especially if that man didn't create the situation in which he was forced to kill someone in self defense.

 

[Frank Ettin]

And if you kill, it is likely, unless you are a sociopath, that you will feel guilt.

As I've never experienced such a thing, I'm obviously speculating on this, but I'd think that the fear of imprisonment could cause a person to muster up whatever it takes to suppress those feelings of guilt and get on whith his life in an ordinary fashion. Don't forget, soldiers and officers who kill in the line of duty have no fear of getting caught or being imprisoned. I think fear for self trumps guilt for harm done to others.

And do you have a scintilla of evidence to support your speculations that "fear trumps guilt"? Do you have any sound basis at all for such a notion, other than perhaps you'd like to believe it? Indeed, it seems that guilt goes together with fear of getting caught. People tend to feel guilt for acts that they are afraid will cause others to think less of them, to judge them.

So I ask again: If you had just shot someone to death, could you just go home to your family and friends as if nothing had happened? Could you go to your job the next day as if nothing had happened? Are your ties to the honest world so tenuous that you could walk away from everything you're used to?

Me personally? I don't know nor do I ever care to find out. But, I can only suppose that if I were in a situation where I (for whatever reason) chose to not report a self-defense shooting, that yes, I could do those things. Or, at least I think I could, if it meant saving my life, saving the life that I worked hard to create, saving my family from grief, etc. I think you'd be suprised at what a man can do when faced with the fear of losing everything he's got, especially if that man didn't create the situation in which he was forced to kill someone in self defense.

And do you have a scintilla of evidence to support your contentions here?

On the other hand, the studies by people like David Klinger and Lt. Col. David Grossman strongly suggest that in fact someone who has legitimately and legally take another life may have a number of significant, negative emotional and psychological reactions. How much greater are those negative reactions likely to be when he bears the burden of making a secret of his actions, and has thus cut himself off from any chance of support from his family and friends?

I think anyone who thinks he will likely be able to return to his normal life after having killed someone and failed to report it is seriously deluding himself.

 

[Skans]

And do you have a scintilla of evidence to support your speculations that "fear trumps guilt"?

Nope. I think when I mentioned that I have no experience at this and it's mere speculation, I've basically acknowledged that I don't have any evidence of that. Not really, anyway. Except, I do know what I am capable of when faced with fear. And, I guess I've seen what others are capable of when faced with varying degrees of fear. Not exactly "evidence", but I didn't exactly make the statment with no basis or foundation in logic or fact.

Take note that all of your cited examples involve those that have killed, but have no fear of getting caught or fear of losing everything. There is no fear to counterbalance the guilt. All I'm saying is that I am never surprised of what emotions the human mind is cabable of dealing with when your life depends on it. Not everyone feels that they need to spill their guts to someone over "bad acts" that they've committed.

 

[JohnKSa]

There is no criminal penalty for not reporting crimes in Florida, New York and a number of the other southern states.

How do you know this? That's a very interesting bit of information to be carrying around in your head.