Much has been written on the subject concerning what occurs immediately after there is a shooting. Let’s discuss it from there and even further down the timeline from shooting through investigation and perhaps criminal charges. Hopefully, this article proves not only generally interesting but also prompts us to ponder in greater detail our decision to carry a concealed weapon along with the potential consequences in using it.
Investigations are usually prompted and handled uniformly by different police agencies. For sure, different agencies handle things differently, but we can speak generally here. Let’s say someone makes an initial call alerting the police that an incident has occurred. This call and communications between the officers are recorded. Recordings are made of calls from civilians to the police department as well. This is important to remember as these recordings will be preserved and will be reviewed by the police and prosecutors later when deciding if there will be charges filed.
Clearly then, if you make the initial call, the words you speak will be thoroughly analyzed and taken apart at a later date. Many articles have been written on what you should and should not say at this point, and I don’t intend to explore this topic here fully. Remember though, that it is you who will say what you will say in those first few seconds immediately following the most traumatizing occurrence in your life. Maybe you will forget what you have studied and react on adrenaline but just maybe, what you have read and given some prior thought to might help and come to mind. A brief statement and an alert that an ambulance is needed should suffice. The dispatcher will ask questions, and the answers should be to the point. The same will hold true as to what to say when the police arrive. The first on the scene are the uniform police officers, screeching cars, bright flashing lights and many of them. They may be agitated and nervous. The last thing you want to do is make the situation worse. There should be no weapon in your hand. The police are trained to take immediate control of a situation so let them do it. Follow their commands.
If you have dropped your weapon, leave it where it is. The officers will secure the scene, and after that, all gun shell casings, weapons, and other evidence will be marked and photographed in place. The prosecutors will later examine in detail what the evidence reveals.
“Oh, the shooters casings are “X” distance from an auto where he could have taken cover. Could he have retreated with safety?”
The doubters begin. A forensic expert will review the droplets of blood which may reveal much as to the movements and position of all participants. Probably it was a good idea to learn what obligations there are under the law before holstering up and using deadly physical force. What about your duty to retreat?
The investigators, detectives, coroner, coroner investigators will arrive. Witnesses will be interviewed. A member of the district attorney’s office homicide bureau will arrive. This senior assistant district attorney will survey the scene and make observations, prayerfully after being cleared by forensics that the risk of contamination has been eliminated and the evidence properly documented. The shooter usually gets handcuffed. And questioned and questioned. What are you going to do if you are kept on the scene in a police car, and the police keep coming to you to ask questions? I have counseled a number of clients as to what I would recommend they to say to the police or what to say during testimony and more times than not, after a few minutes, the person will resort to their being natural selves and succumb to the stress of the moment.
After some brief statement, you must invoke your right to counsel. You would do well by stating unequivocally that you want to consult with an attorney before speaking any further. Whether you say this or not, don’t you think the police will still pressure you? Remember a prosecutor will be reviewing later any statements made to police for contradictions. Whether or not a statement is admissible at a trial because of a constitutional violation is quite different from the prosecutors using it in their decision making relating to charging.
Back at the police station you are brought into a room and questioned again. Remember to try to invoke your constitutional right to an attorney. Probably a good idea to have thought about who that is some time ago. Investigators have been known to make promises if you speak but remember that ultimately a prosecutor can generally override promises made by the police. Hopefully, after the police have gotten a brief statement from you and see that you are legally carrying and cooperative, they will be somewhat understanding.
You may be in a cell for a while as the investigation continues. The police will hold you until there can be some initial determination as to your claim of self-defense. Charges may be filed then, or you may be let go. If filed, you are arraigned before a Judge probably more than 24 hours later. Sometimes they can’t decide at that point the ultimate issue and will charge you anyway. These are often called “holding charges.” You can’t believe that Judge just said $250,000 bail. Probably a good idea to have given that some thought earlier. Do you have insurance coverage? Either way, the inquiry has just begun.
The homicide assistant district attorney (ADA) back in the office opens a case. This will even happen in a clear justification situation. The ADA will begin to gather just about everything about the actual incident and yourself. Photos of the scene will be reviewed in great detail by the prosecutors. Reports from the police will be reviewed which will include anything you said under questioning or voluntarily blurted out. The medical examiner’s report will be reviewed, and they will be consulted. Are they able to determine the distance from the shooter? Is there gun-shot residue on the clothing? Is the position of the shooter and deceased able to be determined? The trajectory of the bullets will be reviewed. Any available videotapes will be secured. Witnesses often are mistaken about the number of shots, distances between the parties, who was the initial aggressor and even identifying the wrong shooter. So they may be re-interviewed. Virtually everything the district attorney can find out about you will be reviewed. The available information to law enforcement is staggering. Law enforcement has access to “intelligence centers” which contain more information about you than you know about yourself. Neighbors, previous addresses, real estate, mortgages, Facebook posts, warranty cards you filled out, etc., etc. It probably wasn’t a good idea to post that picture of yourself with a gun saying that no one better mess with you, was it?
After all of this information and facts are reviewed by the assigned assistant district attorney, they will ask for what is called a “homicide review.” This review is basically a presentation of the case to the district attorney and senior members of the staff. These individuals will ask pressing questions and express their views. Remember that this is done in a sterile environment unlike that which you face in the shooting. Your actions will be taken apart into milliseconds. Oh yes, what is the media reporting?
Again, it is ultimately up to the district attorney as to what the next step will be. The District Attorney has a number of choices. The DA can have the guts and end it there. There will be no prosecution. The DA can “punt” and present the evidence to a grand jury (generally16-24 people). Many DAs feel that this is often the best route for them to take as it “takes the heat off” of them to make the decision. They can easily state that it was the grand jury’s decision, not mine. It is then that the grand jury which will make the decisions on whether or not to charge. The standard of proof needed for an indictment is simply “reasonable cause” to believe a crime was committed, not the “beyond reasonable doubt” standard for a trial. Also, the decision to charge by members of the grand jury does not have to be unanimous, unlike that needed for a conviction after trial. Your lawyer may advise you whether or not to testify before the grand jury. If the grand jury decides to charge you, it is through an instrument called an “indictment.” Now you really have to worry.
Things can get really expensive. Putting aside attorney’s fees, your lawyer may recommend, if not already done, hiring your own team of experts. Forensic experts to counter the government, experts specializing in the area such as the effects of a shooting on an individual and the role that may have played in your actions and statements, experts in bullet trajectories/velocity, penetration depths, etc.. These people are costly. Some experts charge in excess of $5,000, just for an initial report and then thousands for trial testimony. All of this goes without mentioning the effects on your mental health and that of your family.
So, this is downright intimidating. Not only do you have to train for improving your shooting skills but thinking about that split second decision is even more horrifying. It is you and you alone who needs to prepare and be ready to make the decision when you are justified. The one basic premise which must be inbred in your mind is that you never shoot unless it is absolutely necessary under the law. Absolutely. If one is not prepared to make that decision, then carrying is probably not a good idea. However, if you are prepared to make that decision and deal with the aftermath, then thank God we have not only the Second Amendment but the whole rest of the Constitution.