SELF-DEFENSE . . . OR SOMETHING ELSE?

Image result for loose lips sink ships


I scour the internet almost daily on self-defense and related topics, courtesy of as-it-happens Google Alert emails. That usually results in my reading articles of deadly force incidents where an LEO or nonsworn alleges self-defense.  I follow up on some, to a second and third article.  Too often there is “quoted” a statement purportedly made by the deadly force user, his/her attorney, or the LE agency PIO or command (sheriff or chief), that is inconsistent with justified self-defense, or is otherwise problematical. The statement may have been made to the writer/reporter or to incident responders, at a court appearance, or during an impromptu or scheduled press conference or media interview.

The most common ship-sinking (or legally meaningless) statements include those which assert or opine that the deadly force user: didn’t intend to kill or harm anyone; didn’t think the firearm was loaded; inflicted bodily harm by accident; only meant to scare or stop a threatener; was scared or in fear for his/her life; was attempting a citizen’s arrest; imagined/suspected/speculated the person on the receiving end of the deadly force might have been armed. Worse still, sometimes the statement will suggest the use of deadly force was premised on mere defense of (real or personal) property or was an intervention of a criminal act to which deadly force is not a lawful response.

I think I get it: No “good guy” wants to be seen as someone who intentionally inflicted death or great bodily harm. Never-mind that the defense of justification by its nature admits the elements of one or more serious crimes, and although admitting to negligence or recklessness might seem more palatable, it is very likely a confession to a manslaughter crime. (Wait, then, there may be insurance coverage. Yes, there is something known as “negligent self-defense,” (see, e.g., HERE and HERE) but that is not the topic of this post).

In the case of a LE agency PIO or command response, the ship-sinker is often an unnecessarily detailed factual description (made shortly after the event and thus long before any investigation is completed) of what occurred, including the how and why. The statement is later determined to be incomplete or not entirely consistent with the results of the full investigation, a body or dash video, or the LEO’s later complete recollection of the event. Result? Qualified immunity is denied and a case that is undeserving of a trial gets one. Where a jury is allowed to find against the LEO user of deadly force because of allegedly inconsistent explanations.  (With or without accusation of fabrication).

I previously wrote about North Carolina law and the potential for loss of a self-defense jury instruction in a “warning shot” case, HERE.  More recently, in South Carolina (HERE), an appellate court ruled that a defendant might be entitled to instructions for both self-defense and accident. Wisconsin courts have recently weighed-in as well, including a 66-page Supreme Court opinion, see HERE.

A ship-sinker statement made by an attorney for the deadly force user is particularly pernicious. Statements made by the attorney may be admitted in evidence as if made by the client.  A good primer on this, what is known as vicarious admission, is HERE. There is also a related something called a judicial admission, which can occur during a hearing or trial, which binds the client to a statement or failure to contest of his/her attorney in open court or in court filings.

When you hire an attorney, make sure one of the first things discussed about the attorney-client relationship is that the attorney will make no public statements, or reveal anything you tell him/her to investigators or the press, without your deliberate consideration and express approval. Contrary to popular belief, an attorney who enjoys media attention is likely one to avoid.

Don’t complicate an already difficult situation.

Takeaway: Beware of unguarded talk (link).

Related (interesting read): A Crime of Self-Defense: Bernhard Goetz and the Law on Trial” — (click on photo for link to publisher)

A Crime of Self-Defense

 
This entry was posted in Legal, Training by Steven Harris. Bookmark the permalink.

About Steven Harris

Steven Harris (Florida Bar, 1979 - Martindale "AV" and Preeminent) consults and co-counsels with other defense attorneys in "self-defense" cases, and represents federal agents and state and local LEOs in duty related disciplinary and use of force matters. He writes and lectures about OIS, duty-related legal issues, and self-defense law for the nonsworn. He writes regularly (since January 2020) on related topics for Florida lawyers in Forum 8, a monthly Bar newsletter. See https://www.8jcba.org/page-18058. Steve has also authored articles in numerous legal, accounting and business publications for over 45 years, and is a co-author of a two volume treatise on federal criminal and civil tax and money-laundering litigation, which has been cited by several federal courts, including the United States Supreme Court. Steve has been shooting various competition handgun disciplines for more than 30 years.