I begin with an important disclosure: I am one of Massad Ayoob’s “Files” survivors. Ayoob wrote about my own self-defense shooting case in the July/August 1991 issue of American Handgunner. I have considerable respect for Ayoob as a firearms tactician and trainer. My disagreement concerns something very different: his advice about what an armed citizen should say to police and 911 immediately after a defensive shooting. In my view, some of that advice can be extraordinarily dangerous.
No two shootings are identical, and there is no universal script that safely fits every case. A statement that appears helpful in one investigation can become devastating evidence in another. A traumatized citizen standing over a wounded or dead person should be extraordinarily cautious about making statements before consulting counsel.
The 911 Call Is Evidence
A 911 call is not merely a request for help. It is recorded evidence. The caller may believe he is simply summoning assistance, but saying, “I shot him,” immediately identifies the caller as the shooter. That admission does not establish murder and does not eliminate self-defense, but it establishes a critical fact the prosecution may otherwise have been required to prove through independent evidence.
Every additional sentence creates another opportunity for ambiguity, mistake, exaggeration, contradiction, or an unfortunate choice of words. A person who has just survived a violent encounter may be frightened, injured, exhausted, angry, confused, or suffering the physiological effects of extreme stress. That is hardly the ideal moment to give a detailed statement that prosecutors may dissect months or years later in the sterile environment of a courtroom.
Police Questioning Is Not a Friendly Conversation
Police officers may be courteous, sympathetic, and professional, but that does not change their investigative function. Their job is to determine what happened, identify evidence, establish probable cause where appropriate, and determine whether a crime occurred. The safest legal course is generally not to attempt to talk your way out of a homicide investigation while standing at the scene.
A person who intends to invoke constitutional protections should do so clearly and respectfully: “I am invoking my right to remain silent. I want an attorney before answering questions.” Then stop talking. Do not argue, become belligerent, attempt to impress officers with your knowledge of firearms or self-defense law, or fill uncomfortable silence with explanations. Where body-worn cameras are being used, a clear invocation may also create an objective recording of exactly what was said and when it was said.
The Police Did Not See the Shooting
The responding officers were usually not witnesses to the shooting. They arrive afterward and reconstruct the event from physical evidence, witnesses, statements, forensic evidence, video, and surrounding circumstances. Video can be tremendously valuable, but surveillance footage may have poor angles, inadequate lighting, missing audio, low resolution, incomplete coverage, or only a fragment of the encounter. Some cameras are not recording at all.
A firearm lying on the ground or sitting on a nearby table does not identify who fired it, why it was fired, what happened immediately beforehand, or whether the shooting was legally justified. The government’s job is to investigate those questions. The citizen’s job is not to build the government’s case against himself.
Summoning Medical Assistance Without Giving a Statement
Someone who has been shot may desperately need medical assistance, and medical aid should be summoned. But summoning aid does not require giving a detailed statement about the shooting. If another person is present, that person can be asked to call 911 and report that someone has been shot or is bleeding and provide the location.
If circumstances require the shooter to make the call personally, the immediate objective should be obtaining emergency assistance, not narrating the shooting. A concise statement such as, “There is a person here who is badly injured and needs an ambulance. Send medical help to [location],” accomplishes that purpose. The critical distinction is between summoning emergency assistance and volunteering an evidentiary statement before receiving legal advice.
Criminal Histories and the Courtroom
Investigators may examine the backgrounds of everyone involved, but the fact that the deceased or wounded person has an extensive criminal history does not automatically mean that history will be placed before a jury. Evidence rules govern whether prior acts, convictions, reputation evidence, or other character evidence may be admitted. Admissibility can depend on why the evidence is offered, what the defendant knew before the confrontation, and whether it bears on the defendant’s perception of danger or another legally permissible issue. The courtroom may therefore look very different from the street.
When the Burden of Proof Effectively Gets Turned Upside Down
Here is where legal theory and courtroom reality can become two very different things. As a matter of law, the prosecution bears the burden imposed upon it by the Constitution and applicable criminal law. A defendant is not supposed to be required to prove his innocence. But I have personally watched trials where, as a practical matter, the burden of proof was effectively turned upside down, often because of poor defense lawyering.
A weak defense can allow the case to be presented as though the defendant must explain every inconsistency, justify every movement, account for every second, and affirmatively convince the jury that the shooting was justified. Instead of forcing the prosecution to prove its case beyond a reasonable doubt, the defense begins behaving as though its client must prove that he deserves an acquittal. That may not be the burden written in the jury instructions, but what the law says should happen and what actually happens in a courtroom are not always identical.
In a self-defense shooting, that practical shift can be catastrophic. The defendant’s own statements may become the prosecution’s most effective weapons. A frightened person can make an innocent mistake about distance, sequence, timing, the number of shots fired, the position of the attacker, or precisely what was said. Months or years later, physical evidence may establish something slightly different, allowing the prosecutor to argue, “He changed his story.” An understandable mistake made under extreme stress can suddenly be portrayed as consciousness of guilt, while a poorly prepared defense attorney spends the trial explaining the defendant’s words rather than forcing the government to prove its case. Once you give the government your words, you cannot take them back.
Where Massad Ayoob and I Part Company
Massad Ayoob and I share decades of experience involving firearms and defensive gun use. I respect his accomplishments as a firearms instructor and tactician, but respect does not require agreement. Where I strongly disagree with Ayoob is the proposition that an armed citizen can reliably protect himself by following a predetermined post-shooting script with police.
There is no magic script. There is no collection of carefully rehearsed sentences that guarantees an investigator, prosecutor, judge, or jury will interpret them the way the frightened citizen intended. The Fifth Amendment exists for a reason. The right to counsel exists for a reason. They are not technical loopholes reserved for guilty people. They are constitutional protections designed precisely for moments when the government’s investigative machinery has focused upon an individual.
After a defensive shooting, the stakes could hardly be higher. Save the life if you can. Summon medical assistance. Do not fabricate evidence. Do not conceal or destroy evidence. Do not resist the police. Clearly invoke your right to remain silent and your right to counsel. Then stop talking.
Massad Ayoob may continue defending his post-shooting advice for the rest of his life. I will continue disagreeing with him. When the possible consequence of one unnecessary sentence is decades in prison, this is not merely a disagreement about firearms-training philosophy. The gunfight may last seconds. The legal fight can consume the rest of your life.
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