His continued company was not an adequate substitute for the loss of these pleasures and she kicked him out. In retaliation he tried to kill her. She shot him stone dead. The police officer asked why she had killed him. “Well, he drank all of my beer and smoked all of my cigarettes ….”
At this point the boyfriend’s body was wheeled past and she was struck dumb with shock. There being no further response, the officer wrote up his report: “Suspect stated that she killed him because he drank all of her beer and smoked all of her cigarettes.” The lady was acquitted, but it could have been avoided.
Following the gunfight, the citizen will suffer a roller coaster of conflicting emotions.
In the aftermath of a shooting, the standard legal advice is to remain silent. The standard legal advice is also to call 911. This conflicting advice is not logical. However, Justice Oliver Wendell Holmes famously stated, “The life of the law is not logic, it is experience.” Experience has shown that both statements are good advice. The trick is to bring order out of this adversarial advice. We have an adversarial legal system kept in reasonable order by a set of written guides. In the aftermath of a gunfight the necessary guide is a “Stay Out of Jail” card. These cards provide guidance to speak, but not too much, and to shut up.
One attorney warns that half of the charges against people after a self-defense shooting are due to comments during 911 calls. Failure to call 911 is taken as an indication that one is not a victim. It is a peculiarity of our system that one has an absolute right to remain silent only after being arrested.1
Following the gunfight, the citizen will suffer a roller coaster of conflicting emotions. Under stress blood retreats from the frontal lobes of the brain; this is where 10,000 years of human civilization live. It retreats to the primitive, central part of the brain. This is the part where the basic urges live: sex, anger, fear, and aggression. If one tries to make a statement and all the brain can process is sex, anger, fear, and aggression, the result will not be pretty. No one would suggest making a legal decision while under the influence of a chemical. Adrenaline is a very powerful chemical and will not be out of the body for a good three days.
Unless the statement is focused, it will stray into ugly territory. The card helps focus the statement.
Massad Ayoob, an experienced combat and post combat legal defense instructor, teaches a list of statements for the victor to give the authorities. An experienced self-defense author suggests, “I’ve just been attacked. Send an ambulance and police to (location).”2 This version has the advantage of brevity, but does not include some of the detail appellate courts unrealistically expect in a 911 call. The Western Missouri Shooters Alliance distributes a “Stay Out of Jail Card”3 which summarizes Missouri Weapons and self-defense law and a list of six statements to give to the 911 operator:
Location must be the first statement. If the call is lost, the authorities know where to start their inquiries. In one case the operator misunderstood the street number and sent responders to 65th Terrace instead of 56th Terrace. Computers insist we provide our email addresses twice to avoid mistakes; we should do as much with human operators.
“He tried to kill me” is the flagship statement.
“I was afraid for my life” is something that should be assumed from “He tried to kill me,” but is not. Fear is required for a self-defense claim. I heard a prosecutor tell a jury that my client never said that he was afraid until he spoke to a lawyer. This was not entirely true; the prosecutor was lying to the jury, and the judge was letting him get away with it.
“I defended myself” must be stated at the earliest possible moment. Courts and juries are suspicious of defenses which appear for the first time at trial. The prosecutor is allowed to mention this surprise at trial, despite what most believe to be an absolute right of silence.
“Send an ambulance” is often taken as an assertion of moral superiority, but it is more. Several cases have held that actions taken to save the life of the psychopath after the unanticipated shooting indicates the citizen’s intention before the shooting.5
“The scene is safe” assures the responding officer that he is not walking into a gunfight.
The 911 operator will continue to ask questions, beginning with medical questions. The victor will be in no condition to diagnose the assailant’s condition. These questions are designed to get the caller to continue giving information—information which will be used against the caller.
However, in an age in which bumper stickers, T-shirts and tattoos are placed in evidence, certainly some vindictive prosecutor will attempt to place such a card into evidence.
The responding officer will want more information. Clearly, something needs to be said to preserve the defense case. The Stay Out of Jail Card advises the acronym, SHIELD:6
Silence is the basic principle. Statements must be brief.
“He attacked me” introduces the parties to the responding officer, who was not a party to the 911 call.
“I am innocent” is another one of those statements which must be made at the earliest possible moment. Failure to claim innocence can be mentioned in court.
“There is the Evidence” points out perishable facts essential to the defense. The CSI team will not be called to pick up every hair and fiber. If forensic teams did in reality what they do on that show, their budget would last about a week. Point out cartridge cases, blood spatter, any injuries, and witnesses who might disappear later.
“I want a lawyer” is important. Unless one asks, one does not get a lawyer. Even if the family lawyer is pounding on the interrogation room door, unless you ask for a lawyer the police do not have to let him in.
“Don’t” is another broad principle. Don’t resist, it looks suspicious and they will just bring enough police to make it happen. Don’t consent to searches, questioning or tests of any kind.
When one finishes the statements on the card it is time to remain silent and request a lawyer. However, police officers believe that a request for a lawyer is evidence of a guilty conscience. Some reason must be given to assuage the prejudice. Police get sued all the time. Telling the officer that a lawyer is wanted out of a fear of being sued will strike a responsive chord. Jurors easily understand the fear of lawsuits. We all heard of Bernard Goetz who shot four assailants in a New York subway, was acquitted on grounds of self-defense, and was then sued for $43 million‑and lost.
Carrying cards such as the Stay Out of Jail Card has been criticized as showing an intent to engage in a gunfight. Certainly, carrying a gun and spare ammunition would overwhelm the impact of such a card. Many attorney business cards carry advice to remain silent and refuse consent when encountering police. The ACLU prints a substantial card giving advice in various circumstances. I am not aware of any case in which these cards were mentioned as a factor.
However, in an age in which bumper stickers, T-shirts and tattoos are placed in evidence, certainly some vindictive prosecutor will attempt to place such a card into evidence. The WMSA Stay Out of Jail Card has the advantage of containing general legal advice about the purchase and possession of guns as well as self-defense. It contains very strong advice on the importance of manners. It is therefore easier to defend than strict gunfight advice.
The need for such cards has been ridiculed. Some commentators cannot believe that a citizen can perform competently in a gunfight, but collapse into a sea of nerves afterwards. I do not find this difficult to believe; I have seen it.
The card is not a perfect solution. However, perfect is not required. In an insane situation every little bit helps.
[ Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense. ]
|Kevin L. Jamison
2614 NE 56th Ter
Gladstone, Missouri 64119-2311
Individual answers are not usually possible but may be addressed in future columns. This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney.