What You Need To Know About Self-Defense Shootings, According To An Attorney
If you have to use a firearm for self defense, expect a legal firestorm to follow. Here’s what Attorneys on Retainer had to say about it.
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Does the idea of needing to fire shots to save your life sound scary? Just imagine how it feels when your state's justice department decides before the smoke clears that, actually, you are the real problem.
Knowing what to do – and, equally important, what not to do – after a defensive shooting can determine the success of your legal defense.
But don’t take it from me. I got in touch with Andy Marcantel, partner and managing criminal defense attorney with Attorneys For Freedom Law Firm, the firm that backs Attorneys On Retainer, to get a better understanding of everything that goes into a legal defense following a defensive shooting.
You’re going to want to bookmark this one.
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Every Legal Case is Unique
Marcantel had lots of great insight, but he stressed that no two cases are the same, and there’s no such thing as general legal advice. The last thing you want when your future is on the line is cookie-cutter legal representation.
Knowing what you could potentially experience is invaluable, though, and that’s what we’re going to cover today.
Who to Call After a Self-Defense Shooting
Marcantel dropped one of his biggest surprises right off the bat: there are times when you should not call 911.
That’s right, it’s possible that you’d be better off calling your attorney first.
He shared a story about one such event. In that instance, the prosecutor ended up declining to bring charges because there wasn’t enough evidence for the state to build a case.
All the while, the client wanted desperately to make a statement because he was sure the police would be sympathetic and take his side. Considering that not catching charges in the first place is the best possible outcome, the only thing he could have possibly done was make things worse for himself.
So, how do you know who to call first?
“You should assess the question, ‘is human life in danger?’” Marcantel said. “If you can assess that, yes, human life is in danger right now, then you should call 911 first and you should make a very brief statement, which I'm going to talk about in a second. But then, as soon as you get off the phone with 911, you call your lawyer. If you have AOR, you call us. If you have a different lawyer on retainer, you call a lawyer 100% and you get custom advice.”
“But on that step one, if you determine human life is not in danger, or you don't know for sure human life is in danger, call your lawyer first and get custom advice for your situation.”
What to Say (and Not Say) After a Self-Defense Shooting
If you speak to an attorney who is representing you (not a representative from an insurance company), you benefit from attorney-client privilege and everything you say is confidential.
If you’re speaking to a police dispatcher, you’re already creating evidence that will appear in the state's case against you. Marcantel recommended keeping it short and direct.
- Tell them there’s been a shooting.
- Provide your address.
- Ask them to send help.
Then hang up. Keep talking, and you’re basically ripping pages out of your legal defense team's playbook before the game starts.
“We don't know what your legal theory is going to be at this point, and we don't know if the facts are going to support your version of whatever your legal defense theory ends up being,” Marcantel said.
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“So all you're doing is you're shutting doors for your future defense. And when you're dealing with a crime like the one you would be charged with, if you're charged with illegally shooting somebody – aggravated assault on the low end, homicide charges on the high end – we're talking about decades of your life; potentially the rest of your life. Why on earth limit your future criminal defense attorney from bringing every possible defense that they could possibly bring on your behalf?”
Aside from boxing yourself in from a defense perspective, the minutes following a defensive shooting are not the time to start improvising. Even a poor word choice or simply misspeaking could come back to haunt you in court.
“You've just been through a highly traumatic situation where you're probably not in the best frame of mind, and apt to forget key, essential pieces of information,” Marcantel said.
Time & Money Associated With a Legal Defense
I’ve heard defense cases referred to as the fight after the fight. Unlike the shooting that landed you in legal trouble, this one could last a very, very long time.
According to Marcantel, a straightforward case with few disputed facts, and ample evidence might last six months. That’s not the norm, though. It’s more likely that a case will span several years.
And the financial cost is significant if you have to pay out of pocket.
A case that never even goes to trial should cost you at least $50,000, with a six-figure bill being more likely. If homicide charges do go to trial, expect the total cost to be much higher.
“If it goes to trial and requires lots of witnesses, that all comes out of the pocket," Marcantel said. "If you don't have some sort of insurance or Attorneys On Retainer, you're looking at hundreds of thousands of dollars and not only legal fees and lawyer fees, but also all the expert fees associated with it.”
That’s why arranging some kind of legal protection in advance is so important. A few hundred dollars a year for retainer fees or insurance isn’t pocket change, but it’s a tiny fraction of what you may have to spend to defend yourself in court otherwise.
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Private Defenders vs. Public Defenders
If you’re shocked by how expensive it is to hire a private defense team, there is another option: working with a public defender. It’s much less expensive, but there are downsides.
“They are just too busy,” Marcantel said. “Our system just imposes a crushing caseload on public defenders. You could have the best attorney in the world, and if you're one of a hundred cases that they have to get to that week, they're not going to do a good job on your case. That's just the sad truth about our justice system.”
“The biggest risk is that you're in one of those jurisdictions (most of them) where your public defender just has a crushing caseload and isn't going to be able to have the time or the resources to spend to get you the best result possible.”
A public defender is a better option than representing yourself and winging it. But, if years of your life were on the line, you’d probably rather have a team of attorneys who can dedicate all their time to picking apart every miniscule detail of your case and building the strongest legal defense possible.
Bonus Question: What About Knives & Pepper Spray?
Firearms get most of the attention when it comes to self defense, but some of us carry multiple tools to protect ourselves. I was curious to hear how the presence of knives and less-lethal forms of defense, like pepper spray, could affect your case if you use a firearm for self defense.
“There is no rule that requires you, as a civilian, to work on an escalation of force continuum,” Marcantel said.
Police officers and military service members may have to follow specific protocols before using a firearm in the line of duty, but civilians do not. In fact, the jury may not even be allowed to know that you had other tools available.
“I would file a motion ahead of time saying the state shouldn't be allowed to even mention that my client was carrying non-lethal on him at the time because it's irrelevant,” Marcantel said. “He was facing deadly physical force, and we're saying that he used deadly physical force in self defense.”
Final Thoughts
At the end of a long, happy life, I hope all of our defensive firearms end up being a waste of money.
If you ever do have to use a gun to protect yourself, withstanding the legal repercussions isn’t something you should attempt on your own. My conversation with Marcantel showed me that there is more to know than I could hope to learn, and hiring a team of professionals is worth every penny.
Arranging for legal support ahead of time should definitely be part of your home-defense plan. You can see everything this service has to offer in our Attorneys On Retainer review.
Do you have some kind of legal protection or concealed carry insurance? Let us know what you chose – and why – in the comments. Need some suggestions? Check out our guide to the Best Concealed Carry Insurance!